What exactly is Probate?


Probate is the legal process that takes place after a person’s death, where the deceased person’s assets are transferred, whether testate or intestate.  Testate means their assets can be distributed according to their wishes as stated in a Last Will and Testament.  Intestate means they died without a Will and their assets will be distributed according to State Law.


The Probate process includes resolving all issues related to personal and real property, taxes, insurance proceeds, paying off creditors for outstanding money owed, title transfers, and others issues which might arise following the death.

Cecil E. Berg Attorney Probate and Wills Polk, San Jacinto, Walker and Montgomery Counties in Texas

Only after someone dies with a Will, can the Probate process begin. Probate is the legal procedure that establishes the last Will and testament and it’s genuineness. Probate is done by “the Surrogate” in the county where the deceased lived at the time of their death.


Probate court is what is called a surrogate court where the Will is read and interpreted.  During that process an executor is named and verified as qualified. The Probate process judges the validity of all claims made against the estate.  These claims will come through heirs and beneficiaries, as well as owed taxes and debts.


Probate is started by making application in the appropriate form and that application must contain all the specific information required by the Probate judge to make a decision.  Information required includes name, date of death, copy of the last Will, death certificate, where they lived at the time of death, ages of minor children, the names of the testator’s children when the Will was made, and much more.


Probate Application


Once the Will, the Probate application and death certificate are all properly filed, the Probate Judge will review the papers for irregularities, errors, omissions or objections, and will then admit the Will to Probate.

Cecil E. Berg Attorney Serving Polk, San Jacinto, Walker and Montgomery Counties in Texas

Is Probate required in every case?


There are a few reasons why Probate is required and we will discuss them briefly below.  If you determine Probate is required, or advised, you have to go to Probate court to make a claim on the deceased’s assets, or to prove that you are a legal beneficiary.  If any one of the following applies to you, or to the deceased, then it is advised that you consult a Probate attorney.


  1. Probate is required if the deceased died intestate which means the deceased died without a Last Will and Testament.  Without a Will defining the deceased wishes, then a Probate court process must be initiated to properly distribute the deceased assets, transfer title of Probate property, and pay off debts and taxes owed.  Probate is the defined process to do this equitably.
  2. If the Will is challenged, or it is determined to be invalid for one of the reasons listed below, Probate is required:
  • Mental Incompetence –This challenge is in play if someone claims the deceased was not mentally competent when they made up the Will.
  • Improper Execution – If the Will wasn’t written clearly or it does not meet the requirements and is determined it is not a legal Will.
  • Undue Influence – If the deceased was under duress or was unduly influenced when the deceased wrote the Will.
  1. If the assets are owned solely by the deceased then Probate is required.   In most cases, during the Probate process, property is transferred out of the deceased’s name and into the beneficiary’s name.
  2. If the deceased person’s assets were owned as a Tenant in Common or a Joint Tenancy, Probate will be required.  This means that if the deceased person owned property jointly with another person, for example if the deceased were involved in a common law marriage, then Probate is required to make sure the deceased’s share of the asset is properly distributed to the legal heirs.
  3. If all the listed beneficiaries have died before the deceased, or if there are no designated beneficiaries, Probate is required.  Assets like retirement funds, savings accounts or life insurance policies, beneficiaries are usually specified, but if all the named beneficiaries have previously passed away or if the deceased didn’t name beneficiaries, then Probate is required to transfer the assets, money or title to the beneficiaries according to State Law.


Put simply, Probate is required if there are significant assets that need to be distributed, or if there are creditors that must be paid from the Estate outside of what is stated in the Will, or if there are questionable Wills or if there is no Will at all.   If one or more of these items listed apply to your situation, Probate is required and is the best way to proceed so you’ll have to appear in Probate court.


Probate is a complex process


The factors that make Probate complex are many and they range from the emotions involved, the logistics required making sure documents are secured and are in order, to filling out and filing the application.  All the factors listed as well as many more can cause difficulties, delays and frustrations throughout the Probate process.

Losing someone is a very emotional and stressful event.  Due to these emotional aspects involved with the death of a loved one, Probate can at times take a while to get started.  Those involved in a Probate are sometimes more concerned with mourning their loss than they are interested in dividing up their assets.


There can also be financial difficulties during the Probate process arising from debts owed to the deceased creditors.  Creditors must be dealt with during this time grief so they can be informed and these debts can be settled by the estate


Financially there will usually be difficulties during Probate. If the deceased owed any money, creditors need to be informed, so that any debts owed can be settled through the individuals’.  One other consideration if the estate is large enough is inheritance and estate taxes owed.


Challenges to Probate


Even when the deceased person’s Will clearly states their intentions, the Will can be challenged during the Probate process. The administration of a Probate can be challenged by any interested party. Here is a list of some of the most common challenges that might occur during a Probate process:


  • A contested Will can be challenged to determine its validity.
  • The assigned executor or Administrator of the Estate can be challenged to determine their ability to serve in that capacity.
  • A challenge concerning whether or not the executor is administering the estate properly.
  • A challenge to the identity of heirs. DNA tests are costly but may be ordered to identify proper heirs to an estate.


How long does Probate take?


Usually 6 to 9 months.  Rarely is Probate a cut and dried process.  Every Probate is different so it is hard to answer the question definitively.


Delays can occur during the grieving process but there are other factors that can delay the length of time a Probate can take.


Any individual filing a claim on the estate of a deceased person must do so within 6 months following the deceased persons passing.  If large parcels of real property were owned by the deceased, the Probate process will be delayed.


The deceased person’s personal finances have a bearing on how long a Probate can take as well.  If the deceased person had any creditors then arrangements to identify and pay those debts must be made.  These factors and many more can affect the length of time it takes to go through the Probate process.


DIY Probate


Yes, it is possible to complete a Probate without the assistance of a qualified Probate Attorney.   We hope we have shown you some of the factors to consider when making the decision to tackle this yourself or to pay a qualified Probate Attorney to assist with this tedious and time consuming process during your time of grief.


If you need a qualified and experienced Probate Attorney for Polk, San Jacinto, Walker or Montgomery County, please consider using the services of Cecil E. Berg, Attorney at Law.

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