McKinney, Texas Probate Attorney

I am often asked, “Exactly what is probate?”  When I tell some people that one of the areas of law in which I concentrate my practice is probate, they ask me if I can help their brother get out of jail – probate does not relate to probation.  So just what is probate?  The Texas Probate Code states that it is a matter or proceeding related to the estate of a decedent and includes the probate of a will, settling the personal representative’s account of an estate or a will construction suit.  In broad general terms it is the process of filing the will of a person who has died, appointing someone to handle the affairs of their estate, distributing the estate to the heirs and finalizing the matter.

Not all assets that someone owns at death have to or can go through a probate proceeding.  One category of non-probate assets is those titled in such a way that they automatically pass to a certain person or persons upon the death of one of the owners.  Accounts or property owned in joint tenancy with rights of survivorship are an example of this type of non-probate asset.  Another category is those assets with beneficiary designations.  Examples of these include life insurance policies, IRAs and other forms of accounts.  It is important to note that even these forms of assets might become probate assets if the persons designated in the beneficiary form die before you do or the beneficiary form is not completed and the policy or plan provides that the decedent’s estate is the default beneficiary.  A final category of non-probate assets is those assets held within a trust.  Those assets will be distributed in accordance with the terms of the trust.

Even if you leave a will, it might not need to be probated if all the property in your estate can be transferred out of your name without the probate proceeding. The Texas Estates Code states that the custodian of a will is to file it with the clerk of the county that has jurisdiction over the estate when that custodian finds out that the person who made the will is dead. But this filing requirement does not require that the filed will be probated. There is no requirement that you probate a will no matter how much the estate is worth. Wills need to be probated only if property is not transferred by some other means.

One should not, however, confuse this absence of a need to probate a will with the requirement for the filing of a tax return and payment of taxes.  The federal estate tax laws usually provide that a certain amount of property in an estate will be exempt from any estate taxes.  This amount varies from year to year, so it is important for you to contact an attorney or accountant working in the area of probate or estate tax to verify whether any filings or payments are due for the estate of a decedent.

So what do you need to do if a loved one is declining or has passed away?
  • Locate the will.  This is not always an easy task, so if the individual is able to direct you, that can save much time and confusion later.
  • Consult with a probate attorney.  In most of the larger counties in Texas you must have an attorney to probate a will.  Even if you don’t think probate will be necessary, it is a good idea to consult with a probate attorney who can ask pertinent questions that might raise issues you had not thought of or who can answer questions you might have.
  • File Application for Probate.  If probate will be necessary, start the proceeding.  There are a number of stages to the process, but if the decedent had a properly drafted will, the probate process can be relatively short and inexpensive.
Not all probate proceedings are as easy as this answer indicates.  For instance, you may find yourself in the middle of a will contest, or the will you need to probate may have defects or have been written in another state, thus complicating the probate.  The important thing is to contact a probate attorney to begin the process.  Undue delay can also cause problems.  Mr. Davis is ready to assist you evaluate your situation to determine how best to proceed.

Please contact our office for an appointment.  We are located at the intersection of Plano, McKinney, Frisco and Allen, Texas, just 30 minutes from downtown Dallas, and provide legal services to individuals in the North Dallas, McKinney, Frisco, Plano, Richardson, Addison, Lewisville and Carrollton areas of Collin, Denton and Dallas Counties.