At one time or another, most people will have to navigate the intricacies of probating a will. This can be difficult for a variety of reasons both emotional and practical, but having a good grasp of the terminology involved will ease the process. Please see below for definitions of commonly used terms related to probating an estate.
Probate
To start, the word probate itself should be defined. Probate is a legal process in which a court grants a person the ability to dispense of all the assets of a deceased person, pay any debts owed by the deceased person, and generally wind up any other affairs of the deceased person. This process involves going to court, having a judge award you the rights to handle the affairs of the deceased person, getting documents from the court that are used as proof the appointed person has the power to wrap up the deceased person’s estate, and completing necessary administrative tasks after the estate is distributed.
Testate and Intestate Probate
There are two main types of probate- testate probate and intestate probate. A testate probate occurs when a person died with a will and that will is submitted to the court for probate. An intestate probate occurs when a person dies without a will. When a person dies without a will, the distribution of their estate is determined by Texas laws of intestate succession instead of a will.
Executors and Administrators
In a testate probate, a court will appoint an executor. An executor is the person designated to distribute the assets of the estate and wind up the affairs of the estate. An executor may be or may not be a beneficiary of the will. In an intestate probate, the court will appoint an administrator to distribute the assets of the estate and wind up the affairs of the estate. Executors and administrators serve largely the same function but are referred to by different names depending on whether or not the deceased person left a will.
Letters Testamentary and Letter of Administration
The court gives the executor of a will a document called Letters Testamentary. Letters Testamentary is a document that an executor can show to banks or other organizations to prove the executor has the right to access the bank accounts or other assets of the estate. When an administrator is appointed, the court gives the administrator a letter of administration that serves the same function.
Beneficiaries and Heirs
A beneficiary is a person (or entity such as a college or church) that receives assets that have been left to them in a will by a deceased person. The executor of the estate distributes the assets the beneficiary has been granted in the will to the beneficiary. An heir is a person who receives assets left to them by a deceased person who did not leave a will. An administrator of an estate distributes the assets an heir is entitled to by Texas law.
Affidavit of Heirship
An affidavit of heirship is not a term involved in probate, but it is a commonly misunderstood tool related to transferring the assets of an estate. If the only asset in the estate is real property, beneficiaries or heirs may be able to file an affidavit of heirship to transfer title to the property without having to go through the probate process. An affidavit of heirship is a sworn, notarized, document that lists the heirs to a deceased person’s estate. Typically, an affidavit of heirship is used when a person dies intestate however under certain circumstances it can be used when a person died testate. The affidavit of heirship is usually filled out by one of the deceased person’s heirs. The best practice is to then have it corroborated by two people who have known the family for ten years or more. The two additional people will each fill out a corroborating affidavit that will be included with the affidavit of heirship. This document will then be recorded in the real property records for the county in which a piece of property is located. This transfers title from the deceased person to the living heirs and allows the heirs to sell or otherwise use the property in any manner they want.
It is important to discuss the probate process, and potential alternatives to probate, with an experienced attorney.
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