Probate is the legal process for determining how a person's property and debts are handled after death. And probate law determines the process for collecting and managing the property of a deceased person (decedent), paying the deceased person's debts, and distributing any remaining property (generally, personal property or real property) to its rightful owners.
Probate is generally necessary when the decedent owned personal property and real property at the time of death, and the next rightful owners of the property (heirs) need to be identified and documented so possession and ownership of the property can be transferred in a legally defensible way. Probate is also generally necessary when the decedent had outstanding debts at the time of death.
The law generally distinguishes between probate assets and nonprobate assets. Probate assets are property that passes to the next owner at the decedent's death through a will. Because a will was historically known as a testament, these probate assets are sometimes called testamentary assets. And nonprobate assets (nontestamentary assets) are those assets that are not disposed of by will or by the laws that determine the transfer of property when a person dies without a will (intestate succession laws). Nonprobate assets are said to pass outside the probate estate.
Common examples of nonprobate assets are:
• property that passes by virtue of a contract with a designated beneficiary—such as life insurance policy proceeds and retirement plans (e.g., 401k, IRA);
• property that passes by right of survivorship, such as joint checking and savings accounts, certificates of deposit, and POD (payable on death) accounts;
• government benefits that are paid after the decedent's death, such as Social Security survivor benefits, Veterans benefits (survivors' pension or death pension), and U.S. Civil Service death benefits for a surviving spouse and children; and
• property in an inter vivos trust whose distribution is determined by the trustee after the decedent's death.
Thus, if the decedent died with only nonprobate assets—and with no outstanding debts—probate procedures are generally not necessary to administer the decedent's estate. But if the decedent died with only probate assets and some debts, it may be advisable for the estate to use the probate process to pay any debts due and protect the beneficiaries against claims of debt that are not due.
In Texas, probate is the legal process that occurs after a person's death to settle their estate, which includes distributing their property and paying off any debts. Texas law requires probate when a decedent has left behind probate assets, which are assets that are transferred through a will or by intestate succession laws if there is no will. These assets are also known as testamentary assets. Nonprobate assets, or nontestamentary assets, are those that do not go through probate and pass directly to beneficiaries. Examples of nonprobate assets include life insurance proceeds, retirement accounts with designated beneficiaries, joint accounts with right of survivorship, payable on death accounts, government benefits, and property held in a living trust. If a person dies with only nonprobate assets and no outstanding debts, probate may not be necessary. However, if there are probate assets and debts, probate is typically used to ensure debts are paid and to protect the beneficiaries from potential claims.
