WHAT IS PROBATE?

I get asked this question at least weekly, “What is Probate?” Basically, when there is a Will, probate is just the process of approving the Will and the Executor. If there is no Will, then probate is the process of appointing someone to be in charge of the deceased persons affairs.

Probate is the process in which a court legally recognizes a person’s death and facilitates the payment of a decedent’s debts and the distribution of the decedent’s estate. Decedent is the term courts and attorneys use to describe a deceased person. The court’s role is to oversee this process, protect the interests of all beneficiaries of the estate, and mitigate the risk of wrongdoings.

After someone passes away, their estate needs to be settled. Debts and taxes need to be paid and distributions to heirs need to be made. This happens by way of a court-supervised process known as probate. Despite probate being fairly common in the state of Texas, there are often a lot of questions about it. And the majority of these questions stem from wondering what the average cost of probate in Texas actually is.

The cost to probate an estate depends on numerous issues. Was there a Will? A Will typically makes it easier, thus less expensive, to probate an estate. Are there heirs fighting over the Will? This will cause a dramatic increase in the cost. Are there a bunch of assets or complex issues related to the estate? Again, this can cause the fees to increase.

So, what are some probate costs that are common with a typical probate case; court filing fees, attorney fees, executor compensation, surety bond and potential various profession fees such as accountants or appraisers. Because probate fees can range so widely, it’s not easy to give a set dollar amount. But these fees can range from $3,000 and up. All of these costs are the responsibility of the estate.

Who requires the estate to be probated? Usually, my clients are trying to sell real estate or access a bank account for the deceased. The bank requires verification so that they can release the funds to the proper party. Basically, the bank does not want to get sued for improperly handling the estate funds. The bank relies on the Probate Court to designate the proper person. Also, when it comes time to sell the real estate for the deceased, the title company wants to ensure they are dealing with the person that has the authority to sell the property.

Just because you have an original Will, that does not mean the Will is the most recent version or if the Will is even valid. Probate just ensures that the Will is validated by the Court and the Executor is approved. Banks, financial institutions, and title companies rely on the probate process to ensure they are dealing with the proper party. This process protects all the potential beneficiaries of the estate, and it protects the person purchasing the real estate from the estate.

Probate in Texas can last between one month and one year and can be a complex and exhausting process. Working with an experienced probate attorney will reduce the stress while also providing you peace of mind during what is likely a difficult time.

Paul B. Owens is an attorney practicing in the areas of Probate and Estate Planning law. He serves in a number of other capacities, including on the Board of Directors for the CASA Helotes Senior Center in Helotes Texas. He can be reached at his office in Helotes at 210-695-5110 or at www.PaulOwensLaw.com