If you are the individual designated to handle the estate of someone who has passed away, you might be exposed to a wide variety of terms and concepts that most of us don’t deal with on a regular basis. If you’d like, bookmark this page so that you can refer to it in the future.
This summary of essential terms and concepts in the Texas probate system is not intended as legal guidance. Hopefully, it helps make sense of some of the lingo you encounter.
A person who has passed away.
The sum total of a decedent's worldly belongings, or assets. Through the legal system, society determines what will happen with these belongings, including how to use them to pay outstanding debts. Ideally, the decedent's personal wishes are honored.
The process by which the court supervises and directs the division of a decedent’s estate among living people. In Texas, the usual deadline to start probating a will is four years after a decedent’s death, although extenuating circumstances can extend this deadline.
A document in which people express their wishes regarding what will happen with their belongings after they pass away.
When someone has set up a last will and testament prior to passing away, this person is said to have died testate. If there is no will, this person is said to have died intestate.
The individual charged with taking care of a decedent’s estate. A personal representative is a fiduciary and can be of three kinds: an executor, an administrator, or a trustee.
A person who has taken on a legal and moral responsibility to manage another person's assets. In probate, a personal representative is a type of fiduciary. The law holds fiduciaries accountable for their decisions and actions.
The individual designated in a will to be entrusted by the court with carrying out the wishes of the decedent. An executor can be a man or a woman; sometimes, a woman who is executing the estate is called the executrix.
In the absence of a will that names an executor to carry out the wishes of the decedent, the court will authorize someone to perform final actions for the estate. This person is an administrator.
Legal document authorizing a personal representative to perform final actions on behalf of a decedent's estate – including bank and investment accounts, real estate, vehicles, sentimental belongings, and so on – and debts. The documents are issued by the court, generally in the county where the decedent lived. The term is used when there is a will.
When there is no will, the legal document giving authorization for the disposition of a decedent’s property and debts is called letters of administration.
When a judge requires that the personal representative get court approval for all financial transactions, this is dependent administration. This may happen, for example, if there is controversy over how the estate should be settled. When personal representatives have more freedom to conduct business as they see best, this is independent administration.
An individual or institution specifically named to receive a benefit from a will, trust, life insurance policy, retirement account, and so on. Not all beneficiaries need to be heirs: for example, business partners, even beloved pets. Generally, beneficiaries take precedence over heirs in the distribution of funds.
An individual who would normally inherit property by intestate succession laws, like a child of the decedent. Not all heirs are necessarily beneficiaries: for example, sometimes a would-be heir is deliberately omitted in a will or living trust.
An individual or institution to which a debt is owed. When someone passes away, creditors will seek debt repayment by claiming a portion of the decedent's estate. On the other hand, the decedent might have been a creditor, and other people might owe money to the estate.
In Texas (and in eight other states in the U.S.) property acquired by a married couple during the marriage is considered to be owned equally by each partner.
An estate whose value does not exceed a minimum threshold may be declared by the court to be too small to warrant going through the full probate process.
A Latin phrase meaning ``for oneself.`` In a legal setting, this means acting before the court without guidance from an attorney. In Texas, courts do not permit a personal representative without a law license to act pro se – in the most common situation, where a personal representative is named, an attorney must also be attached to the case.
A Latin phrase meaning “by branch.” (Why do attorneys like Latin so much . . . ?) If a beneficiary is no longer living, then that person’s inheritance goes to his or her beneficiaries.
A document that amends or changes the content of a will.
A document that proves title to property, like a deed. In Texas, a will can be probated as a muniment of title. When strict requirements are met, the court might choose to use a will this way in order to streamline the processing of a case, eliminating the need for probate.
A handwritten will that has not been recorded by an attorney. In Texas, such wills are admissible in court, but defending the will against contenders can be challenging.
A legal alternative to a last will and testament. When a living trust is set up properly, people's property actually belongs to a trust for which they are beneficiaries. When that person dies, the court does not need to get involved and probate does not occur. The overall process is vastly less complicated and less expensive than probate, usually also less contentious. The person or entity who takes care of a trust is called a trustee and will be the one who divides property when the time is right.
When decedents have not directed in a will or living trust how their estate is to be distributed, the court will make this determination based on state laws. Especially in cases where individuals have been married more than once or had children by more than one partner, the distribution might not seem logical to all parties and can become a source of contention.
Preserves chain of title of decedent’s real property without requiring probate.
If the government cannot find heirs for a decedent’s estate, the government will claim the property for itself as a source of revenue.
A researcher designated by the court to locate heirs for an intestate probate case.
