Tuesday, June 07, 2005

What does "Probate" mean?

I can't tell you the number of people who have worried about having their Will go through "probate," making it seem as if it is a process worse than the actual death itself. In Texas, however, the administration of an estate is a relatively painless process, assuming you have everything in order.

First of all, "probate" is derived from the Latin word probatum, meaning "to prove." Thus, to probate a Will (at least in Texas) simply means to prove that the Will is valid. Once the Will is admitted as a valid Will, then the executor named in the Will is approved by the Court. The executor files his or her oath and begins the process of administering the estate.

Texas has an administration process that is probably the simplest in the nation. It is known as "independent administration", and it means that other than proving the Will is valid, the appointment of an executor, and the filing with the probate court of an inventory of the assets that actually pass under the Will, there is no court involvement in the administration of the estate. The executor handles all matters independent of court supervision, and needs no approval from the Court to sell property, distribute assets, pay expenses, or do anything else that might arise in the regular administration of an estate. This saves time and money, since there is no necessity to go to the Court (incurring legal expenses) for approval of anything the executor needs to get done.

This does not mean that the executor has free rein over the estate. The executor must still adhere to the laws of the State of Texas and the terms of the Will. Failure to exercise due care in the administration of the estate could result in liability for the executor, but assuming the executor is receiving sound legal advice and does not try to personally benefit from his entrusted role as the caretaker for the estate, there should not be any problems with the administration.

In future posts I will discuss the administration process in more detail, but readers should know that the length of time to administer an estate can vary. An estate is like a snowflake; no two are alike. Problems between beneficiaries, title or tax issues on real property, missing assets--all these can lead to an increased time to administer the estate. An estate without any problems, which is very clean as far as title and tax issues go, and with no issues between beneficiaries can typically be finalized between one to four months after the Will is admitted and the executor appointed. Of course, there are no guarantees and what you may view as simple, the executor may find rather complicated.

In any instance, "probate" is nothing to be feared, at least in Texas. So if you're going to die, at least have the good sense to do it here.