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November 21, 2019

Probate is a court proceeding relating to a decedent’s estate (i.e. their property).  A probate proceeding consists of two prongs.

First Prong: Under the first prong, the court will determine who now owns the decedent’s property.

(a)        If the decedent is believed to have a Will, the court will determine whether or not the document purported to be the Will is, or is not, the valid Will of the decedent.  If the document is found to be the decedent’s valid Will, it will generally state who receives the decedent’s property, and how they receive it.

(b)       If the decedent is found to have died without a Will, they are said to have died “intestate” and the court will determine who are the decedent’s heirs-at-law under the statutes of the Texas Estates Code.  Essentially, if you die without a Will, the state of Texas will write one for you.  There is also a good chance you won’t not like what it says.

Who receives the decedent’s property as the heirs-at-law will depend on several factors such as:

(i)   Whether or not the decedent was married.

(ii)    If the decedent was married, whether or not the decedent’s property is classified as separate or community property.

(iii) If the property is characterized as community property, whether or not the decedent had a child who is not also the child of the surviving spouse.

Second Prong: The second prong is to determine whether or not an administration of the decedent’s estate is necessary. If the decedent’s debts and estate administration expenses need to be paid, the court will appoint a personal representative to do so as part of the estate administration. If an executor is named in a Will, the personal representative is called the executor.  If there is not an executor named in a Will, the personal representative is called the administrator. The names may be different, but they both have the same job. In many circumstances an estate administration can be said to be “independent” meaning there is less court involvement during the administration.

Trust Planning for Your Minor Child

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