Probate has many misconceptions. While many Texas residents may think that probate litigation only takes place if someone has died without a will, this is not the case-probate actually involves the authentication of a will, if it was made, locating and valuing assets, paying the descendant's final bills and taxes and distributing one's assets. If the descendent did not leave a will, his or her bills still need to be paid and the estate distributed, which will take place during probate.
The person who is in possession of the last will and testament should file it with the court as soon as reasonably possible. The application to begin probate usually is filed at the same time and depending on the laws of the state, the death certificate may also need to be filed.
If there is a will, the court must confirm its validity. This could be done in a court hearing and the notice of the hearing is provided to the beneficiaries mentioned in the will as well as heirs who were not mentioned in the will but would inherit if the will were not valid. The hearing is also the opportunity for someone to object as to the validity of the will and the appointment of the executor. The executor oversees the probate process and the estate's settlement. The executor then locates assets, values them, identify and pay creditors and debts and prepare and file tax returns.
If the decedent died without a will or the will was successfully contested, then the decedent's assets are no longer distributed according to his or her wishes. Instead, the estate is distributed to the closest relatives in the order determined by state law.
Probate can be a lengthy and often overwhelming process for those involved. There are certain estate planning strategies that can be utilized to avoid probate litigation and an experienced attorney can discuss them with those looking to protect their assets and preserve their legacy for their beneficiaries.