Living in Texas means you can drive 85 mph on the highway. It also means you share space with 11.7 million cattle and calves.
And if you inherit a home in Dish, TX, you’ll even receive free basic tv and DVR services from DISH Network. But first, you have to deal with Texas probate.
The Texas probate process differs a bit depending on your circumstances. That’s why it’s so important to understand Texas probate law.
We want to help you enjoy the home you inherit. Keep reading to learn everything you need to know about probating a will in Texas.
What Texas Probate Is
When someone passes away they often have left instructions on what to do with their belongings which allows them to bypass the probate process. Often a Trust, joint ownership with a right of survivorships, or direct payments to Beneficiaries (from retirement accounts or insurance policies) has been set up in advance.
By doing any of the above, heirs do not have to go through the probate process. However, if the deceased only left a will, the executor must file for probate.
Right now, only four in 10 American adults have created a will or living trust.
The Court Handles the Probate Process
Probate is the process where a court legally recognizes a person’s death. The court then oversees payments of the deceased person’s unpaid debts. The court also distributes any assets left over after all debts are fully paid.
The purpose of the court is to facilitate the entire process. The court also protects the interests of any Beneficiaries and creditors of the remaining estate.
How Long Probate Takes
It’s important to note that state and local court rules in Texas govern the time periods that an executor must follow when probating a will. However, the general rule is that the executor has four years from the date of death.
If the executor fails to file the will within the time period set, the laws of intestacy in Texas apply. This simply means that there has been no will left.
Complicated or Contested Estates Take Longer in Probate
With a simple estate, a probated will in Texas can usually be completed with six months. If the will is missing, contested, has several beneficiaries, or is over $50,000 expect the probate process to take longer.
It’s important to note that certain assets are not distributed during probate. Instead, they are considered to be non-probate estate and are transferred in another way. Non-probate estate assets can be any of the following:
- Profit-sharing
- 401(k)
- Keoghs
- Pensions
- IRAs
Assets such as these are transferred directly to the named beneficiary. Homes are part of probate and cannot be sold until the process is completed.
The Texas Probate Process
You need to find the right jurisdiction to begin the probate process. There are 18 probate courts in 10 counties. Check with the county clerk before you begin filing to make sure you’re in the right place.
Each court has its own rules towards probate proceedings and qualifications. Each also has its own website.
File the Paperwork
Once you’ve located the right jurisdiction, you must file an application for probate. It’s the jurisdiction where the deceased person lived.
Once filled, you’ll have to wait two weeks before a hearing is held for the application.
Notice to the Public
The county clerk posts a notice at the courthouse which serves as notice that the probate application was filed and lets others contest the will or administration of the estate.
Should no-one contest, the court begins opening the administration. After the waiting period ends, the judge will hold a hearing to legally recognize the death of the deceased person.
Will Validation
The judge also verifies the decedent had a valid will. If no will was left, the judge appoints and verifies someone as executor.
The appointed executor must catalog all assets held by the estate. They must then report these assets to the county clerk within 90 days. The executor must also prepare an Inventory, Appraisement, and List of Claims and swear all information is accurate to the best of their knowledge.
Cataloging Assets
Inventory is the list of estate properties. It should include proper and complete descriptions of all estate assets along with accurate valuations of said assets as of the date of death. In some instances, there may be complex estates or cases where creditors or beneficiaries are likely to question assets owned or the values of those assets. These types of cases may require a higher level of detailed inventory.
For those wishing to protect the decedent’s privacy and keep their assets from appearing as a matter of public record, the executor may file an Affidavit In Lieu of Inventory with the county clerk. This is an exception only if there are no unpaid debts owed except for taxes, secured debts, and administration expenses.
Notice to Beneficiaries
Once the probate judge admits the will to probate, the executor has 60 days to notify all beneficiaries listed in the will. Notification must be done via certified written letters. A copy of the will and a copy of the court order admitting it for probate must be included.
The executor must also file an affidavit with the court to verify he or she provided proper notice.
If there was no will filed, the probate court in Texas determines the beneficiaries. If there is the possibility there are unknown heirs, a notice must be posted in newspapers and at the courthouse.
Notice to Creditors
It’s not unusual for decedents to leave behind debts. All debts must be paid out of their estate including mortgages, household expenses, and even medical bills.
The executor will receive Letters of Testimony from the probate court. After receiving them, he or she has a set time period of one month to provide notice to all creditors of the decedent’s death.
You can publish a notice in the local newspaper which legally provides notice to creditors. All creditors then have an opportunity to file a claim against the estate.
Resolving Disputes
No estate can be finalized until all disputes are settled. If there are disputes over the will, they must be heard by a probate court judge.
Contesting a will in Texas must be done within two years after the original probate. When a will is contested, all parties should consider hiring a legal representative to guide them through the process.
Those Contesting a Will Must Provide Proof
Often when there is a dispute, emotions run high. If someone plans to contest a will they must provide proof that the will is invalid or there’s something wrong with it such as:
- The will is a forgery
- More than one will was executed
- The will was incorrectly executed
- The will was forced as a result of excessive influence by a third party
In most cases, either attorneys or families reach a conclusion without the need for a court case. The issues are usually settled by a mediator before it heads to court.
Distributing Assets
Once everything is settled, the final step is for the executor to distribute the remaining assets in accordance with the will. The executor and beneficiaries work out how they take the assets.
It’s not uncommon for an executor to sell certain assets in order for the beneficiaries to receive money. The executor coordinates the sale and if necessary, pays any state or federal taxes.
What Happens to a Home After a Death in Texas
For those who die without creating a valid will, and the deed to the descendant’s property doesn’t include joint tenancy with survivorship language, there may be problems regarding who has title to the home.
The property cannot be sold until all issues relating to heirship are addressed and resolved. Otherwise, there’s no clear title.
Must Maintain the Property and Continue Paying Certain Bills
The executor or presumed heir most often takes over maintaining the property after someone dies. If no one is currently living there then maintenance typically includes paying things such as:
- Vacant home insurance
- Utilities
- Property taxes
The person caring for the home must also keep up with any lawn care and dispose of any unwanted items from the home.
If no one wants the inherited home, heirs may want to sell the home fast. This way they can avoid paying for any necessary repairs. They can also avoid paying any of the associated costs listed above.
How to Determine Ownership After a Death
If someone dies without a will in Texas, they can complete an Affidavit of Heirship. Even if there is a will, many prefer to avoid going through probate to save time and money.
An Affidavit of Heirship is a good idea for dealing with homes where there are only a few heirs who all wish to avoid probate. This type of affidavit deals with a family’s history, genealogy, marital status, and the identity of heirs of someone who has passed.
Affidavit of Heirship
The Affidavit of Heirship helps identify who can inherit property. It must be executed by someone who possesses first-hand and personal knowledge of the family’s history. This includes marriages, deaths, and births.
Title Companies require that both an immediate family member along with two disinterested witnesses sign and notarize the Affidavit. For those looking to sell the inherited home quickly, try working with a real estate agency to have them help you track down family members or handle communication issues.
Rights of Survivorship
In cases where there are joint owners of a home and one of them passes away, there are rights of survivorship. This means that automatically upon the death of the decedent, the surviving owner becomes the full owner of the home.
In cases of rights of survivorship, the joint owner can avoid having to go through any complicated processes or fill out tons of paperwork. This is the easiest way to inherit a home in Texas.
Preparing the Deed
After completing the Affidavit of Heirship a deed needs to be prepared. The deed is what transfers the title to the proper heirs.
No one can rightfully sell the home until both the Affidavit of Heirship and the new Warranty Deed have been filed with the Real Property Records in the county where the property is located.
This process is simple unless there is no will, multiple heirs, multiple marriages or the house has stayed in the family for several generations without any of them leaving a will. If heirs choose not to work together, the process can take longer and become more complicated.
Common Title Issues
There are a few common issues that may arise in ensuring that there’s a clear title so you can sell your inherited home.
Find Out if There’s a Will
If there was a will, it needs to be probated. If there’s no will, research into family history is necessary to find the rightful heirs.
Make Sure to Find All Potential Rightful Heirs
In cases where the deceased had multiple children or multiple marriages, it’s vital to do extra research into the family tree. Make sure all offspring and entitled heirs are accounted for.
It won’t be fun to find out years from now after the home has been sold and the money spent that there are other unknown siblings demanding their fair share of the proceeds. Get a copy of the deceased’s death certificate to help you through the process.
Problems with the Title Search
When performing a title search you may find liens or foreclosures against the home. Those are typically found in probate court but if you obtained an Affidavit of Heirship, this is something you’ll have to find out on your own.
You’ll have to settle all debts before you can rightfully sell your inherited home.
The Truth About Inheritance Tax in Texas
Some heirs worry about having to pay hefty inheritance taxes in Texas. Especially on something as large and expensive as a home.
Fortunately, Texas doesn’t have an inheritance tax. And there’s no need to worry about having to pay federal taxes unless the estate is worth over $5.34 million in value.
If the estate is valued over $5.34 million then there is a 40% federal tax which goes to the US Treasury. However, you may still face having to pay taxes once you sell the home.
Sell Your Home Fast
Once the estate has gone through Texas probate, if the house is legally yours and the title is clear, you can sell it. If you’re looking to sell your inherited home fast, we can help.
We have a team of professionals waiting to guide you through the process. Find out how it works and then contact us to get started.