Transfer of Estate Property After Death
When a homeowner passes away, surviving relatives are often tasked with the administrative tasks involved. This includes transferring estate property and ensuring that the person's outstanding debts are paid, a process known as probate. Under certain circumstances you may be able to complete the probate process without the aid of a lawyer, but in most cases you will need a licensed attorney.
Transfer of Estate Property: Steps in the The Texas Probate Process
The probate process in Texas depends on whether the decedent — the person who died — filed a will or not. If the person filed a will, the process is simplified. If she left no will, or if one or more surviving family members disagree with the stipulations of the will, the process can be much more complicated.
The first step in the probate process, regardless of whether there is a will or not, is to file a probate application. There are 18 probate courts within the state in 10 counties, including El Paso County. The probate must be filed in the county where the deceased person held legal residence.
Legal Representation During The Probate Process
In Texas, only a licensed attorney has the authority to probate a will, but there are exceptions that will allow you to probate a will without legal representation. If the person who passed had no outstanding debts and you only need to have the title of the property transferred to the next of kin or beneficiary, you may be able to probate the will by filing a muniment of title, a document that serves as legal proof of property ownership.
In many cases, you will need the assistance of a probate attorney to complete the probate process, particularly if:
- There are outstanding debts against the estate
- There are multiple beneficiaries
- The will is contested by one or more survivors
- There is no will
A qualified probate attorney can file the paperwork and help you through what can be a convoluted process.
The Probate Process Timeline
Once filed, there is a two-week waiting period for family to respond, allowing those who may contest the administration of the property to challenge the motion. If there are no disputes, the probate process continues as follows:1. The court holds a hearing where the probate judge verifies the death certificate, the status of the will, and the named executor. If there is no will, the court will appoint an administrator to handle the probate process.
2. The executor files an inventory of estate properties. If the decedent has no debt, the executor may be able to file forms in lieu of an inventoried list of assets.
3. The executor contacts the beneficiaries and shares the details of the decedent's wishes. If there is no will, the Texas court system must determine who receives the properties of an estate.
In Texas, the probate process can take anywhere from six months to two years.
The Role of the Will in The Probate Process
The presence of a will can greatly simplify the process of transferring property. If the decedent had a will, the house and properties are turned over directly to the beneficiary listed in the document. In some cases, the home or property may need to be sold before it can be transferred. This often happens if the home has a large mortgage or there are numerous debts that have to be paid before the remaining assets can be distributed.
The Texas Laws on Intestacy for Those Without a Will
If someone dies without making a will, they are said to have died "intestate." Texas requires the surviving family members to follow a specific set of succession laws known as the laws on intestacy.
The probate court is also responsible for naming an administrator or executor to oversee how real estate property and personal assets are settled without a will. If the estate has a total value of less than $75,000, the family may be able to avoid going through probate process.
The Hierarchy of Inheritance in Texas
Usually, a spouse or child is the first beneficiary on the list, followed by parents and siblings of the decedent. However, this may vary. If the person had no children and the parents have already passed, the surviving spouse receives all of the estate. If there are a surviving spouse and children, the spouse receives community property (that property that is jointly owned) and one third of the personal property and whatever real estate the decedent owned. The children receive the rest.
When a property is jointly owned, the beneficiary of the property is usually the surviving spouse. This isn't always the case, however. Other surviving heirs can claim some ownership of the property after the death of the owner, and this may require the help of a mediator.
The Cost of Settling an Estate
In Texas, there is no real estate transfer or inheritance tax, so the beneficiaries do not have to worry about paying anything on the property or assets that they receive. However, they may be subject to other income taxes, such as those imposed on personal income or retirement accounts.
Acala Investments has more than two decades of experience in the real estate business. We can help you refinance or sell your probate estate. Give us a call today to find out how we can help you navigate the probate process.