Articles Posted in Probate

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.


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.

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In Texas, there are several basic strategies you can implement to bypass probate. If you have been part of probate proceedings following a loved one’s death, you know that probate can be difficult to navigate and frustrating to deal with when you have other things on your mind. The process can also take time and resources that unnecessarily delay the process of passing assets from the descendent to his or her beneficiaries. Today, we cover some probate avoidance strategies that you can implement to bypass probate with your own assets.

Create a Revocable Living Trust

One basic tool we often recommend to our clients is the revocable living trust. This tool allows you to put assets in a trust, essentially sealing the money from outside influences such as creditors, debtors, and probate. While creating a revocable living trust, the grantor often names him or herself as the trustee, therefore allowing him or herself to maintain control of the assets.

Once the grantor dies, however, control passes to a second trustee, often named in the estate planning documents. The next trustee then distributes assets however the grantor asked for them to be distributed.

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Probate is the legal process through which a court reviews a decedent’s will or estate planning documents and accepts the documents as valid and enforceable. In Texas, there are certain assets that must go through probate. There are, however, ways around probate, which many clients are interested in, given the cost and time that probate requires. On today’s blog, we review which assets must go through probate in Texas, but as always, it is best to speak with a Houston estate planning attorney if you have more detailed questions about the process.

Put simply, your estate goes through probate in Texas. The “estate” includes: financial accounts in your name, real estate, notes (i.e. money that someone owes you), personal property, LLC interest (companies you own or operate), lawsuits (where you might have a chance of a recovery), and inheritance. Assets in your estate will be subject to probate, no matter how bi or small those assets are.

Many individuals are interested in avoiding probate, and there are several strategies we recommend with this goal in mind. You can, for example, organize your assets in a way that excludes them from probate. One such method of organization is forming a trust – the money in the trust will be protected from probate. You could also open a transfer-on-death account. This is essentially a bank account that tells the bank to automatically transfer money to a beneficiary upon your death, therefore avoiding the probate courts.

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Going into a legal consultation regarding your probate affairs, you may have questions about what might happen during the meeting. On today’s blog, we expand on our YouTube series that discusses some of the ins and outs of probate by covering what you can expect during a probate consultation with an attorney from McCulloch & Miller.

Central Issues

There are a few central concerns that your probate attorney will want to address to make sure that the two of you are on the same wavelength. First and foremost, your attorney will want to know if there is a will or other estate planning document in play. If you are beginning the probate process for a loved one, the path you take will look completely different if there is a will or if there is no will. Even if there is a will, the attorney will want to have a look – it’s possible, for example, that the will might be invalid or that there might be inconsistencies that the attorney wants to raise on the front end of the proceedings.

In our blog posts in the past, we have reviewed the process of creating, probating, and enforcing a will. In many cases, this process is straightforward, but there are times when complicated factors sneak in. For example: what happens if a person dies with two wills? Which will serve as the controlling document? And how do you navigate this issue if you are going through the probate process?

Who Decides Which Will is the Valid Will?

In short, the probate judge is the person who will determine which will is valid when a decedent leaves behind more than one will. Sometimes, the most important factor in the judge’s decision will be the timing of the will – that is, the will that was created most recently will be the controlling will.

It is safe to say that no one looks forward to navigating the probate process – it can be daunting for those that have lost loved ones and are just trying to get the decedent’s affairs in order. At McCulloch & Miller, part of our goal is to demystify the probate process for clients and potential clients, to help them feel like they have a better grip on what might happen through their interactions with the courts. Today, we cover which assets must go through the probate process, as well as which assets typically are exempt.

Probate Assets

Any real property typically goes through probate in Texas – this, notably, is a broad category of assets that includes real estate, money in non-exempt bank accounts, pieces of land, vehicles, and other important objects or possessions. The probate court’s job is to interpret the decedent’s estate planning documents and determine how these assets should be divided up. In the absence of a will, the court will divide the assets up according to intestate laws in Texas, which tell the court the specific family members that are entitled to receive the decedent’s property.

In an ideal world, probate would go smoothly in every case, and a decedent’s loved ones would always be confident that their inheritance is being handled professionally and well. In reality, however, there can be problems that come up during probate. One such problem, which is rare but severe when it does happen, is when an executor fails to initiate the probate process. On today’s blog, we cover some of the implications of this failure, as well as a few options available to those who have found themselves in this unfortunate situation.

One of the first (and perhaps most obvious) issues that arises from an executor failing to start probate is that the decedent’s assets do not transfer to his or her heirs. Through probate, a court decides that an individual’s will is valid, and the court authorizes the distribution of the decedent’s assets to his or her beneficiaries. Without this process, the assets get stuck, and the heirs are unable to receive their share of the estate.

Similarly, debts fail to get resolved if an executor does not start probate. This means that debtors can still pursue the decedent’s money and property, even going so far as to sue those with access to the decedent’s assets. A decedent’s estate will also continue to be responsible for recurring payments, such as property taxes, if probate has not begun. These costs can add up over time, taking away from the inheritance that beneficiaries will eventually receive once probate does get underway.

At McCulloch & Miller, we understand the dilemma – paying for an attorney can be difficult, but you also don’t want to go through legal battles alone. During the probate process, it can be especially frustrating to navigate all of the procedural hurdles without an attorney. But is an attorney required? Today, we talk about whether attorneys are necessary in Texas probate proceedings.

The short answer to this question is that probate sometimes requires an attorney in Texas. Specifically, most probate courts in Texas do require that an estate’s executor hire a lawyer. The executor is responsible for looking out for not only his or her own interest, but the interests of the estate’s beneficiaries as well. Because of this dual role, most courts stipulate that the executors must retain an attorney during the probate process.

The most common situation in which an attorney is not needed for probate is when the decedent’s will is probated as a muniment of title. We have discussed muniments of title previously on our blog, but for a short overview, muniment of title is essentially a shortened probate process that is available when the estate has (1) no unsecured debts and (2) only real property and cash accounts. If the estate qualifies for muniment of title, the executor can move forward without hiring a lawyer at all.

Clients sometimes ask us about how they can go about selling property during probate proceedings – is it even possible? What does it entail? In short, the answer is yes: you can sell property during probate. As always, however, the long answer is a bit more complicated, as it involves several important steps that are not to be missed.

If a piece of property is tied up in probate, and the descendent had a valid will, there will be an executor of the estate that would be responsible for selling the house. This executor must first get the consent of all of the will’s beneficiaries – without this consent, he or she cannot move forward with the sale.

Once the house is for sale, the executor, real estate agent, or any other interested party must keep in mind several important requirements:

  • The executor must a) file notice of the sale with the court and b) mail the notice to all heirs under the will.
  • The home cannot sell for less than 90% of the home’s appraised value. This, of course, means that the home will need to be appraised prior to the sale.
  • The buyer is required to put down a deposit of at least 10% if his or her offer is accepted.
  • The executor must provide at least 15 days for anyone (heirs, claimants, etc.) to challenge the sale.

If the sale does not abide by the terms above, the probate court can decide that the sale is invalid. If it does meet the requirements, the court will likely approve the sale through a hearing, which takes place approximately a month after the sale.

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When undergoing the probate process, there can be unexpected procedural requirements, hurdles, and costs that you incur. When planning for probate, it is important to note that the cost of probating a will depends greatly on the size and complexity of the estate. For a multimillion-dollar estate, for example, the cost of probate will be much higher than for an estate work a few thousand dollars. Either way, though, it is important to financially plan for the possible burden that Texas’s probate system can take on you and your family.

Which Parts of Probate Cost Money?

To start, the probate court charges individuals to file papers, process the case, and keep records of everything that is happening. These costs will depend on how many filings you submit, but they can be anywhere from $500 to $5,000. One way to make sure these costs are kept at a minimum is ensuring that when you file something, it has all of the correct information the first time, so that you only have to file once.

It also typically costs money to retain an executor of the estate. An executor’s fees are typically a percentage of the estate – for example, they might be 1-5% of the total value of the estate going through probate. These costs depend on the individual executor, as others charge an hourly rate instead of an overall percentage.

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