Yahoo! Finance ran an article entitled “How Long Does Probate Take.” The article sets out several circumstances that can slow down the probate process.
The article is not Texas-specific, so many of the circumstances do not really apply for probates in Texas or are more nuanced than mentioned in the article.
The article provides an opportunity to consider how long probates can take in Texas and what circumstances can extend this time period.
Overall Timing for Texas Probates
The Yahoo! Finance article says that:
Probate is not nationally regulated, and state-level laws vary. So, probate in one state can go relatively quickly, like a few weeks. Others can last up to two years.
Probates cannot be completed in a few weeks in Texas. If there is a will, the will can be probated as a muniment of title. Even this streamlined version of probate will take at least two to three months. The same goes for a small estate affidavit when there is no will.
If there was such a thing as a typical probate, a typical probate in Texas will take at least eight months in Texas. It is more common for the probate to last at least a year.
The Yahoo! Finance article then goes through several circumstances that can impact this general timing. Let’s consider a few of those circumstances.
In Fighting Among Heirs
The Yahoo! Finance article says that infighting among heirs can slow down the probate process. It goes on to say that:
Even small disputes can contribute to this, such as arguments over cosmetic changes to a home before sale.
The article is correct that infighting among heirs can slow down the probate process. This is a correct statement for probates in Texas. It is particularly true for will contests. It is common for this to add one or more years to the process. The dispute can be mediated and this can speed up the process.
The example about cosmetic changes to a home isn’t applicable to Texas. Most probates in Texas are handled as “independent administrations.” That means that the executor (if there is a will) or administrator (if there is no will) has the authority to expend funds for the estate.
Having a Will vs. No Will
The Yahoo! Finance article says that having a will can speed up the probate process:
If there’s a will – great! It usually makes probate easier and quicker.
This is a “maybe” in Texas. The only other step in probate when there is a will is the heirship proceeding. This is a proceeding to prove up who the heirs are. The court will appoint an attorney ad litem (a fancy word for an attorney appointed by the court) to verify the heirs.
As long as the attorney at litem that is appointed acts diligently (which isn’t always the case), this does not slow down the probate process. The result is that the probate with and without a will takes the same amount of time in Texas.
When There is a House
The Yahoo! Finance article then addresses estates that have houses:
Houses almost always lead to probate. Homes are often sold as a way to repay debts or dissolve the estate to distribute assets.
Texas law allows houses to be transferred by affidavits of heirship. This is a real estate filing that can be handled outside of probate. They can even be transferred using a small estate affidavit if the house is a homestead passing to a surviving spouse or minor child.
For the reference to the sale of the house, that is not all that common in Texas. Texas has broad homestead rights. These rights can exempt the house from this type of sale. The executor or administrator just has to set aside the house for the surviving spouse or minor child.
The IRS Estate Tax Closing Letter
The Yahoo! Finance article then addresses taxes. It says:
Taxes on an estate also can take a while. The estate must receive a closing letter from the IRS and the state taxing authority to close out the probate process. You can expect to receive the former within approximately six months.
The article is correct that taxes can take a while. The decedent’s Federal income taxes have to be filed. This usually only involves the last year’s tax return. This typically does not slow down the probate process.
The article seems to be referencing the Federal estate tax. Federal estate taxes only apply to the largest estates. This includes those over $11.7 million in 2021.
The reference to the estate tax closing letter is also not quite right. The IRS closing letter is not required in Texas (and Texas does not have a state-level estate tax). The IRS has stopped issuing estate tax closing letters for estates. You can still get one from the IRS, but now you have to request it and pay a fee. These IRS rules were just made final today.
Debts Owed by the Estate
The Yahoo! Finance article also explains that debts owed by the estate can slow the process down. The article even mentions Texas:
Texas only allows for four months after written notice. Obviously, the longer the claims period, the longer the delay in the probate process.
Texas does allow executors a four-month period to send certain creditors notice. This usually only applies to unsecured debts and debts that the estate does not intend to pay. Think credit cards owed by an insolvent estate (i.e., an estate that has more debts than assets).
Luckily, most unsecured creditors do in fact write off balances or negotiate them down in Texas.
For these reasons, the fact that the decedent has debts often does not slow down the probate process in Texas.
Texas Probate Attorneys
We handle probate cases in Texas. We are experienced probate attorneys in Houston. If you have a question about probates in Texas or need help with an estate, we want to hear from you. Give us a call at (281) 219-9090.