Houston Estate Planning and Probate Blog

What is probate?

Probate is defined as “the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.”
 The definition doesn’t sound too bad, but probate can be a very trying process. Even in the best of circumstances there are procedures that must be followed to the letter, and the actual process (depending on the size of the estate and the laws of the state in which the deceased lived and where the property is being probated) can take anywhere from a few months to a few years.

Do I need a lawyer to help probate an estate?

This depends on the state in which you live and sometimes on the local rules of the courts within the state. Some courts will not allow a party to probate a will without an attorney and some will. If you have been named as executor, probate can often become an overwhelming maze of deadlines, notifications and potential liabilities, and this is why most executors do choose to hire a probate lawyer to help them through the process.

Lawyers can very helpful under any of the following circumstances:

• There are a number of beneficiaries who are not on friendly terms, or are receiving varying sizes of inheritance.
• The decedent had large estate with many different assets, especially if the assets are not commonly held.
• The decedent was a resident in a different state than your own home state.
• A large number of creditors are making claims on the estate.
• There is a disagreement about the will, or if more than one will was found.
• The will is challenged or contested.

Do Life Insurance or Retirement Benefits Have to Go Through Probate?

The answer to the question above is generally “no”; life insurance and retirement benefits do not have to go through probate if the account has a named beneficiary.  Benefits from life insurance accounts can be paid directly to the named beneficiary, and money from IRAs, Keoghs, and 401(k) accounts transfer automatically to the named beneficiaries of those accounts as well.  The persons named as beneficiary, however, will most likely want to consult with a financial advisor to determine what needs to be done with the proceeds from these accounts. Other types of accounts that may not be subject to probate are survivorship accounts (JTWROS),  pay on death (POD) accounts, or transfer on death (TOD) accounts, the money from which can pass directly to the named joint tenant or beneficiary upon the death of the owner.

Probate is a subject most people don’t want to spend much time considering, not only because the rules and requirements can be convoluted and confusing, but also because of the close association between probate and death. If you have any questions at all about the probate process, please don’t hesitate to contact our office—or your own local attorney who specializes in probate—for more information.