Probate

What Happens If There Is No Will? Navigating Intestate Probate in Texas

Published on: November 27, 2024 | By David W. Miller

In an ideal situation, if you are left to handle a loved one’s affairs after they pass, you have your loved one’s detailed will or estate planning document at your disposal. Sometimes, however, individuals die without a will, and their heirs are left to navigate intestate probate in Texas. The word “intestate” literally means that a person dies without a will, and intestate probate is different from (and more complicated than) probating an estate that includes a will. On today’s blog, we review the basics of the intestate probate process for those who might need guidance as they handle their loved one’s affairs.

Step 1: Appoint an Administrator

Because the decedent will not have named an executor, it falls on the court to appoint an administrator for the estate. Typically, an attorney will notify the court that an individual has died, and that attorney will ask the court to appoint an administrator. The administrator will then be responsible for naming the possible beneficiaries of the decedent’s estate. Importantly, the court must issue Letters of Administration during this process; these letters detail the administrator’s authority to act on behalf of the decedent’s estate.

Step 2: Review the Estate

The administrator will need to take time to review the decedent’s assets and debts, including bank accounts, real property, investment accounts, and sentimental or valuable items. Once the administrator is armed with this information, he or she can determine how to administer the estate. In order to administer the relevant assets, the administrator will need to file an affidavit of heirship. This formal document lists the decedent’s heirs and the assets, and all heirs need to sign and notarize the document (along with two witnesses).

Texas Heirship Law

Published on: November 23, 2024 | By Thomas W. McCulloch

In Texas, if a person dies without a will (or if a person leaves property out of their will, intentionally or mistakenly), there are laws that dictate how the state distributes the relevant property. Texas heirship law can seem complicated at first, but today’s blog aims to simplify the process for those whose loved ones died without clear instructions for their property.

In order to decide who inherits a decedent’s property when that property is not accounted for in a decedent’s will, the probate court must first determine the decedent’s heirs. The court will take into consideration three main circumstances when investigating the heirs: the marital status of the decedent; the type of property at stake (separate/nonmarital or community/marital); and whether the decedent had children.

Heirship Law Without a Spouse Involved

If a decedent died without a spouse, the process is relatively straightforward. In this circumstance, the estate goes to the decedent’s children. If there are no children involved, the estate goes to the decedent’s parents, or to his or her siblings if the parents are no longer living. In some circumstances, a decedent dies with no living relatives. If this happens, the person’s estate goes to the state of Texas.

Heirship Law with a Spouse Involved

If a decedent died with a spouse, that person’s separate property is divided as follows: one-third of the estate goes to the spouse, while two-thirds go to the children. If the decedent had no children, the spouse inherits all of the separate property.

How to Handle Debts and Taxes in Probate

Published on: November 22, 2024 | By David W. Miller

The probate process can vary in complexity, depending on the size and nature of a decedent’s estate. While many executors think first and foremost about the assets in a decedent’s estate, it is equally important to consider the debts and taxes that might be involved. Without addressing these crucial elements, it is impossible to have an accurate accounting of how much a person has left behind in his or her estate plan.

Part of every estate executor’s job is to thoroughly review the estate at issue. The estate could include real property, cash, bank accounts, investment accounts, retirement accounts, and tangible items that the decedent left behind. The estate could also include outstanding debts and unpaid taxes. How do you handle these debts and taxes? How do they effect the rest of the estate?

Paying Taxes

It is the responsibility of the estate executor to file the decedent’s final tax return. The executor must ensure that all of the individual’s taxes are paid, whether the taxes are federal, state, or local. The payments for these taxes come directly out of the decedent’s estate.

Paying Debts

The executor must also handle any debts on the estate. These debts could include bills, mortgages, or loan repayments, which can all add up over time and which the decedent might not necessarily have been open about during his or her lifetime. One requirement during the probate process is that the court must give debtors an opportunity to file a claim on the estate in order to notify the executor that the decedent owed them money. Only after creditors are given sufficient opportunity (and only after the debts have then been paid) can beneficiaries begin to inherit from what is left over in the estate.

When a Small Estate Affidavit Makes Sense for Texans

Published on: November 16, 2024 | By McCulloch & Miller, PLLC

Some individuals in Texas qualify for what is called a “small estate affidavit,” which simplifies the probate process and serves as an efficient way to pass assets to heirs. When does the small estate affidavit make sense for Texans? What are the requirements? Today’s blog summarizes some of the basics regarding the small estate affidavit, but as always, with specific questions and concerns, you should speak with a Houston estate planning attorney that can look at your circumstances and tailor your legal advice accordingly.

What is the Small Estate Affidavit?

The small estate affidavit is a sworn statement that settles a decedent’s estate. It must be signed by all of the decedent’s heirs (or otherwise signed by someone with legal authority to sign on the heirs’ behalf).

What are the Requirements for the Small Estate Affidavit?

Individuals in Texas are able to use a small estate affidavit only if the decedent died without a will and if that decedent left less than $75,000 in property behind. The $75,000 value does not include the decedent’s home and some other probate-exempt property. Additionally, the decedent must not have left behind more debts than assets, and he or she must not have owned real property in addition to his or her home.

How Long Does Probate Take? Factors That Affect Probate Timelines

Published on: November 15, 2024 | By David W. Miller

When clients or potential clients ask us how long the probate process typically takes in Texas, we always say that “it depends.” This answer can be frustrating, but there is unfortunately no cookie cutter answer to this common question. As we have described in past blogs, probate is the process through which a court authenticates and approves a decedent’s will, which allows the decedent’s beneficiaries to then inherit from the will. Probate can take anywhere from three months to one year from the date of filing (sometimes longer, in rare cases). There are several key factors that affect probate timelines in Texas.

Estate Planning Documents

Does the decedent have a will, trust, or other estate planning document in place? Is it thorough, detail oriented, and valid? If the court can quickly 1) identify the decedent’s estate plan and 2) confirm that the plan is legally valid, the beginning of probate can go pretty quickly. Sometimes, though, decedents die without any estate plan at all. Other times, they die with estate plans that are not up to standard and are difficult for the court to authenticate. Incomplete estate planning documents can delay the probate process significantly.

Disputes from Third Parties

If a beneficiary or other third party decides to dispute the validity of the will, this elongates probate. Sometimes, individuals that were left out of the will tend to argue before the court that the decedent fraudulently or mistakenly left them out as a beneficiary. It takes time for the court to consider these arguments and determine if they have merit.

What You Need to Know About Muniment of Title in Texas

Published on: November 9, 2024 | By Thomas W. McCulloch

What You Need to Know About Muniment of Title in Texas

If one of your loved ones has recently passed, and that loved one died both with a will and without any debts, you might be able to probate your loved one’s estate through Muniment of Title. Muniment of Title is a tool that shortens the time that probate typically takes, and it allows for a more efficient and cost-effective solution for beneficiaries. There are, however, certain things to keep in mind if you are wondering whether Muniment of Title might be right for you.

Requirements for Muniment of Title

As mentioned, for a person’s estate to qualify for Muniment of Title, the person must have died both with a will and without any debts. Thirdly, the person must not have applied for Medicaid benefits at any point in his or her lifetime. The applicant (typically an heir) for Muniment of Title must be able to testify to these three facts, both in written and oral form.

The Process for Muniment of Title

Once an applicant determines that his or her loved one’s estate meets these requirements, the applicant submits the required documentation to the court. Although the process is relatively straightforward, we recommend having a Houston estate planning attorney look over the paperwork to make sure everything is procedurally correct before submitting. Once the court receives and approves the will, the court will post notice for ten days, advising the public that it will be holding a hearing on the decedent’s estate.

Top Mistakes to Avoid During Texas Probate Administration

Published on: November 7, 2024 | By David W. Miller

Probate is a pain for most involved parties. It entails court filings, hearings, and fees, and it can take longer than many people want to wait. At the same time, probate is a necessary hurdle that allows beneficiaries to access the assets that their loved one left behind. Sometimes, though, estate executors can unintentionally prolong the probate process. On today’s blog, we cover a few basic mistakes that you should avoid in order to keep probate administration running as smoothly as possible.

Mistake # Failure to Keep Up with Deadlines

The first and most important tip for probate that we offer for probate administration is to write down key deadlines and avoid missing them. In Texas, estate executors have four years from the testator’s death to file his or her will with the probate court. If you begin the process four years and one day after a loved one’s death, the court will be unlikely to accept the estate plan for filing. Even after probate begins, there are important filing deadlines that you must keep in mind in order to ensure you comply with the probate court’s orders.

Mistake #2: Failure to Secure the Decedent’s Assets

Once a testator dies, the estate executor’s job is to quickly and efficiently secure all of that person’s assets. These assets could include bank accounts, investment accounts, stocks, real property, or even sentimental items in the individual’s home. No matter the kind of property, the executor’s job is to make sure the assets are safe from third parties. Failing to property secure assets could lead to confusion down the road when money or property is not where the testator originally left it. This could, in turn, significantly delay or confuse the probate process.

What is a Revocable Living Trust? Should You Have One?

Published on: September 7, 2024 | By Thomas W. McCulloch

The estate planning process in Texas offers a variety of tools for those looking to avoid probate. One such tool that we encounter often in our practice is the revocable living trust. On today’s blog, we cover the basics of the revocable living trust as well as a couple of signs that might indicate a revocable living trust might be right for you.

The Revocable Living Trust

A revocable living trust is a trust that you make 1) during your lifetime and is 2) revocable (meaning you can revoke, amend, or change it at any point during your lifetime). This trust is a vehicle you use to hold title to other assets. For example, your house or your brokerage account might be contained in a revocable living trust. This trust helps you control what happens to your assets when you pass, and it helps your loved ones avoid probate when administering your estate plan down the line.

Why It’s Important to Learn About Probate Before Filing

Published on: August 8, 2024 | By Thomas W. McCulloch

The reality is that no one wants to find themselves in probate court. Probate courts evaluate a decedent’s will and decides whether the will is valid before approving the distribution of the decedent’s assets. If you are planning on filing in probate court, it is wise to take some time to first understand how the court works and what you need to do. By learning about probate court before filing, you can save yourself a major headache down the road.

Reason 1: There Are Several Texas Probate Courts

The first reason to learn about probate before filing is that there is more than one probate court. If you file in the incorrect court, the court could determine it does not have authority to hear your claim. You will then have to re-file in another court. To save time and money, figure out ahead of time which of the four Texas probate courts you should use. In general, if the decedent was a Texas resident, the county where he or she died will be the county where you should file for probate.

Reason 2: Probate Costs Money and Time

It can be costly to go through probate. Filing fees and attorney’s fees can take a toll on a family, and it is important to look into these fees ahead of time so that you can plan accordingly. Probate attorneys are required in most probate cases in Texas, and finding the right attorney can be a process. You should always make sure your chosen attorney is upfront about their fees before you decide to retain them.
The time that probate takes can also be frustrating for beneficiaries that are anxious to receive the assets a decedent left behind. Probate can take anywhere from a few months to over a year. By going into probate equipped with this knowledge, you can plan your finances accordingly.

Probate Avoidance Techniques in Texas

Published on: May 31, 2024 | By Thomas W. McCulloch

Probate is the process through which a court determines the validity of a person’s last will and testament. Once the court determines that a decedent’s will is valid and enforceable, the court approves the process of passing the person’s assets to his or her chosen beneficiaries. Probate can take anywhere from several months to a year (or, in some cases, it can take longer). Probate can also end up costing families significant resources, chipping away at the estate that the decedent left behind.

There is, however, good news: with the right strategies in place, you and your loved ones can avoid probate altogether. Today’s blog covers a few basic probate avoidance techniques in Texas. To find out if these strategies might work for you, contact a Houston estate planning attorney you trust.

Trusts

The first, and perhaps most commonly used, probate avoidance technique is the formation of a trust. By definition, a trust is a legal arrangement where a person gives an appointed trustee the right to hold assets on his or her behalf. The creator of the trust, or the trustor, communicates to the trustee how the money should be used. Trusts can shield assets from outside influences like debtors, creditors, and probate.