Probate is a legal process in which special courts and judges oversee the protection of assets of the incapacitated and the settlement of the estates of deceased persons. There are actually two broad categories of probate cases, and they are:

Probate of Decedents’ Estates (or “death probate“)  

In these cases, the probate courts:

  • Determine the validity of Wills
  • Appoint of Executors or Administrators
  • Oversee payments to creditors
  • In the absence of a Will, identify the deceased’s legal heirs
  • Oversee the distribution of assets to heirs or beneficiaries
  • Resolve disputes that may arise among the parties interested in the deceased’s estate.

Guardianship Proceedings (or “living probate”)

In guardianship cases, the probate courts:

  • Determine whether an individual is legally incapacitated and unable to handle their own affairs
  • Appoint the person or persons to serve as guardian of an incapacitated individual’s person and/or estate
  • Oversees the protection of the incapacitated person’s property by examining annual accountings filed by the guardian of the estate
  • Decide how assets will be invested, when they can be sold, and how assets may be used in the best interest of the incapacitated person.

Although Texas has enacted some more simplified procedures with respect to the probate of Wills, approximately half of Texas citizens die without a Will or any planning documents at all. Studies on the cost of probate proceedings have been conducted by the AARP and other financial organizations. Those studies have concluded that, on average, a deceased person’s estate loses between 2.5% and 7% of its value due to probate. Those studies highlight to importance of taking advantage of the freedom to replace the state’s plans for your property with your own plan.

Unlike the probate of a Will, which has a defined ending and only needs to be done one time, Guardianship cases continue as long as the incapacity of the person protected continues. In addition to requiring multiple lawyers to initiate (both paid by the persons seeking the guardianship), as long as the disability continues the spending will continue for the guardians. The spending takes the form of preparing annual accountings, motions for permission to take action concerning the principal of the ward’s estate, and proceedings required to sell or exchange assets of the disabled individual. Where the probate of a typical Will might range between $7,500 and $15,000, a guardianship proceeding can be expected to start at about $25,000 and can reach attorney’s fees and court costs greater than $100,000.