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Probate is the legal process of transferring property following a person’s death. This process is simplified if there is a will at the time of death. How? Because in most situations, the heirs cannot agree on an executor and refuse to assist in the payment of taxes, maintenance, and repairs for the existing property.

When the heirs cannot work together, the home and assets of the decease are lost through foreclosure. For this reason, having a Will that names an executor and distributes your estate is highly recommended. The Will will ultimately eliminate the bickering among the heirs and allow the estate to be probated smoothly.

An executor, is the person who is charged with paying the debts and distributing the property according to the terms of the Will. The executor has the obligation of collecting all the assets, payment of all debts and the proper distribution of the assets. The process of probating the deceased’s estate is simplified by a Will. In the state of Texas the general ‘out-of-pocket’ costs associated with probating a Will is approximately $280. The fee does not include any attorney’s fees.

If no will exists, the deceased’s estate will be probated per the intestate laws of Texas. These laws determine who will inherit the deceased’s estate. An intestate probate can become very contentious among the heirs. Sisters, brothers and other heirs of larger families will general dispute the distribution of the estate. The general out-of-pocket costs associated with probating an estate is approximately $2,500 (filing fee $280; attorney ad litem fee $750; civil bond $1,000).

Transferring Property Without Probate

If no Will exists, the property of the decease still may be transferred. You can transfer bank accounts by preparing and signing a POD (Paid on Death) at the bank. A  POD  will allow you to designate any person on your bank accounts as a beneficiary to the balance in your account(s). Upon your death, your designee must provide a certified copy of your death certificate and proof of identification and the balance in the bank account will be transferred without the necessity of court intervention.

Also, the beneficiary of a life insurance proceeds will be entitled to receive the insurance proceeds without the court’s intervention. Generally life insurance proceeds do not have to be probated, unless a beneficiary is not named. If a beneficiary is not named a the court may need to open probate to insure that the fund are properly distributed among the heirs.

The named beneficiary of the retirement proceeds from retirement account  (i.e. 401k, 403b, etc.) will typically be entitled to the retirement funds. If no beneficiaries are named, the retirement proceeds will be distributed to the surviving spouse. If there’s no surviving spouse, the court will generally have to intervene and probate the estate to insure proper distribution of these funds.

A Small Estate Affidavit is an instrument that allows for the transfer the deceased’s real property without a will, or the necessity of probating the estate. The Small Estate Affidavit is generally used in small estates with only one real property, and typically the estate has no debts with the exception of the mortgage for the real property. In order to properly prepare the small estate affidavit the following needs to be included: the names and address of each heir, the legal description of the real property and the affidavit must be witnessed (signed) by two persons who personally knew the decease but are not related to the decease.

The Davis Law firm can assist you will all matters related to the transfer of property of a loved one’s estate. The information in this article is not intended as legal advice but as a way to ‘demystify’ the process of transferring property in Texas. Contact our office today for a no-charge initial case evaluation.

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