Obtaining the guidance of a knowledgeable and experienced probate attorney after the passing of a loved one is imperative. Frequently, probate attorneys can also assist surviving family members in their own estate planning as well. If you go through a formal probate process, you will understand how your own estate planning can simplify life for your surviving family members.
What is Probate?
Probate and estate administration refer to court proceedings in which an individual is appointed in order to manage a deceased person’s [decedent’s] estate. The primary purpose of appointing someone in this role is to handle to decedent’s final bills and to transfer the decedent’s remaining assets to beneficiaries of the estate, according to the terms of the decedent’s will, or according to the laws of the State of Texas if there was no will. Probate is the official court process under which an estate is settled. Such probate process may be either “independent” meaning very little court involvement, or “dependent” meaning significant court involvement. Whether a probate process is independent or dependent depends on the terms of the will, or upon an agreement of the heirs if there was no will.
The Personal Representative
When a decedent has a will, the individual who will guide the estate through probate is typically named as the executor in the decedent’s Last Will and Testament. The executor and one or two alternates are normally named in the decedent’s will. After being so named and qualified, the executor has the legal responsibility and authority to gather the assets owned by the estate, to pay taxes and bills, and to distribute the remaining assets of the estate to the beneficiaries in accordance with the terms of the will. This is a legal responsibility, one that can result in certain liability to the executor if not handled properly, and a responsibility to be taken seriously.
The Purpose of Probate in Texas
When there is a will, the primary purpose of the probate process is to comply with the terms of the decedent’s will. It is a detailed process, but with the help of an experienced probate attorney, is relatively simple for the client. Some of the steps to be taken by an independent executor are highlighted below:
- An application to probate the will is filed in the court with appropriate jurisdiction.
- The original will document is also promptly filed.
- The Court holds a short hearing in which the validity of the will and certain required facts are proven. As of the time of this writing, hearings are via video conference, using the Zoom App, and typically last for just a few minutes.
- The Court issues letters testamentary to the executor.
- Creditors are given a statutory time period in which to file a claim against the estate.
- The personal representative files an inventory of the estate’s assets within no more than three months after being appointed.
- The executor collects the assets of the estate, pays the bills of the estate, and distributes the net estate to the beneficiaries in accordance with the terms of the will.
It is important to note that not all assets are subject to the probate process. After the owner’s death, certain specific types of assets can pass to named beneficiaries without passing through the formal probate process. Here are a few of these types of assets:
- Transfer on Death Deeds: A property owner may sign a revocable transfer on death deed, which functions to transfer real property to the designated beneficiary upon the owner’s death.
- Payable-on-death or transfer-on-death accounts: Some brokerage and bank accounts can also have named beneficiaries. The owner of the account can fill out particular forms with the financial institution directly to determine who should receive these account assets once the owner passes away.
- Beneficiary designations: Life insurance policies and retirement policies come with their own forms that allow the owner of the policy to stipulate who will receive it.
Revocable Living Trusts
One way to avoid the need for all of your assets having to go through the formal probate process is to create a Revocable Living Trust during your lifetime. These types of trusts can actually own certain assets during your lifetime and also after your passing. These types of trusts have certain advantages and disadvantages. You should discuss these issues with your estate planning attorney.
How a Probate Lawyer in Texas Can Help?
Certain issues can be handled by an experienced Texas estate planning and probate attorney, including:
- Trust creation and administration
- Estate planning and administration
- Tax filings
- Probating wills
- Ancillary proceedings
- Accounting for the estate
- Locating unknown heirs
- Determining and collecting assets
A knowledgeable Texas probate lawyer can assist and advise you with this process about the steps that you must take as a newly appointed executor or administrator. The probate attorney can provide a variety of services when representing the executor of an estate in Texas. Some of these types of services can include: assisting the executor with the sale of real estate owned by the deceased, drafting and filing all applications, evaluating the date of death value, finding and securing assets of the deceased, tax elections and filings, collecting any life insurance proceeds of the deceased, defending against any creditor claims in the estate, assisting with the sale of personal property and ensuring that all interested parties are included in probate papers, to name just a few.
Litigation services may also be required for heirship hearings, contested wills, contested administration, and address misconduct by a fiduciary or spouse. It is always a good idea to consult with an experienced Texas probate attorney as soon as possible.
Common Questions about Probate
What is estate planning?
Estate planning involves thinking about not only what you intend to leave behind after you pass away, but also how you intend for your estate assets to be distributed to the beneficiaries you choose. You will need to consider the types of assets you own, what can be done to protect these assets, and how to ensure that your estate is used for the purposes that you choose after your passing.
Is probate always required?
Probate is the process through which a deceased person’s assets are typically transferred, however, it is not required in every situation. Generating a comprehensive revocable living trust-based estate plan can help certain individuals.
Does a revocable living trust avoid the formal probate process?
A revocable living trust, in certain circumstances, may simplify the formal probate process, but the trust only deals with assets that have been transferred in to the trust. There are asset transfers and other steps that need to be taken after your trust has been created so that the trust actually owns assets, and is beneficial in streamlining the probate process. Seeking the advice of an experienced Texas estate planning attorney can ensure that you get the benefits from the creation of a revocable living trust..