Articles Posted in Probate

Under Texas law, the probate process is triggered when a person dies and leaves property without directly transferring ownership to another party. Probate is the process in which a court recognizes a person’s death, resolves debts, and distributes assets according to their will. If the decedent dies with a will, the estate’s representative or executor must file for probate. In situations where a person does not leave a will, the person’s assets and debts will go through intestacy laws.

The probate process requires a court to determine whether a will is valid. After hearing arguments on the will, the court will appoint a person to administer the estate and determine heirs. After determining heirs, the court will notify creditors of the death and allow them to file claims on any debts the estate may owe. After creditors make their claims, the court will distribute assets and resolve any disputes.

Families should understand that there are two main types of probate processes, “independent administration” and “dependent administration.” Independent administration cases tend to be quicker and less expensive. In most cases, however, the will must provide for independent administration. There are ways to get around this requirement if the lawyer or executor makes the appropriate argument to the court. On the other hand, dependent administration of estates occurs when there is any dispute regarding the beneficiaries or asset distribution.

Probate is the process in which the court validates a will and distributes the deceased’s property according to the terms of their will. While probate is the default process in many situations, there are ways to avoid this lengthy and potentially costly process. In fact, one of the primary purposes of a Houston estate plan is to avoid probate.

Assets that are mentioned in a will are typically passed on to those named in the will. However, certain classes of assets are referred to as non-probate property. Non-probate property consists of those assets that will automatically pass on to the beneficiary at the time of the owner’s death. There are several types of non-probate property.

Jointly Held Property

Depending on the situation, the probate process can be a nightmare. For this reason, many believe probate should be avoided whenever possible. However, avoiding probate depends on the circumstances of each individual situation. While creating a Houston estate plan that avoids probate will be beneficial in most circumstances, there are certainly some situations where the level of planning required to avoid probate is unnecessary.

What is Probate?

Probate is the court-guided process through which a decedent’s property is distributed accordingly. Through this process, the court authenticates the decedent’s will, notifies potential heirs, accounts for the decedent’s property, and addresses tax obligations before estate property is distributed to beneficiaries. The court is also responsible for appointing an executor of the estate to oversee the process and protect the interests of the estate and its beneficiaries. In the case of an intestate estate (where the decedent dies without a will) probate serves the same functions, with the only difference being that property is ultimately distributed according to state intestacy laws.

When discussing Houston estate planning, there are likely to be many unfamiliar terms. Among these terms is the concept of “probate.” Probate is the part of the process by which assets are transferred after death, and specifically refers to the validation of a person’s will. However, the probate process is often lengthy and costly, and is also public.

To better conceptualize what probate is, it helps to have an understanding of the basics of Houston estate planning, starting with wills. Quite simply, a will is a document in which someone outlines how they want their property distributed upon their death. Those who pass away without a will are said to have died “intestate.” In such cases, state law will dictate how their property is passed on to their successors. Of course, the Texas intestate laws are generic and not customized to anyone’s individual needs. Thus, those who wish to maintain control over their assets typically create a will.

When someone with a will dies, that person’s will must be presented to the probate court within four years. If a will is not filed within that time, then the state’s intestacy laws will likely be used to distribute the decedent’s assets. However, if a will is timely presented, the probate court will officially acknowledge the person’s death, oversee payment of their remaining debts, and distribute their assets according to the terms of the will.

Accounting sheet
Do you ever worry about how your beneficiaries will manage their portion of their inheritance when you pass away? One solution that allows you to still exert some control over your money–even after passing–is with a revocable living trust (RLT).”

A revocable living trust is created with a written agreement or declaration that names a trustee to manage and administer the property of the grantor. As the grantor, or creator of the trust, you can name any competent adult as your trustee, or you can use a bank or a trust company for this role. The grantor can also act as trustee throughout his lifetime.

Investopedia’s article from last fall entitled “Should You Set up a Revocable Living Trust?” explains that after it’s created, you must re-title assets—like investments, bank accounts, and real estate—into the trust. You no longer “own” those assets directly. Instead, they belong to the trust and don’t have to go through probate at your death. However, with a revocable living trust, you retain control of the assets while you’re alive, even though they no longer belong to you directly. A revocable living trust can be changed, and any income earned by the trust’s assets passes to you and is taxable. However, the assets themselves don’t transfer from the trust to your beneficiaries until your death.

1.23.20If you pass away without naming beneficiaries in your will, it can create legal entanglements for your heirs.

If you decide to purchase a life insurance policy or to put some money into a new deferred annuity contract or Individual Retirement Account (IRA), you need to complete the beneficiary form.

However, Investopedia’s recent article entitled “Why Your Will Should Name Designated Beneficiaries” says that you may just name a person as a beneficiary, without fully appreciating this aspect of your estate planning.

11.22.19If a temporary administrator has failed to perform their duties properly, the court has the power to remove this person.

Beneficiaries need to know that they have rights too. If a temporary administrator is not following the terms of the will, taking money that belongs to the estate or failing to perform their fiduciary duties, it’s time to go to court.

nj.com’s recent article, “What to do if an estate administrator isn’t doing his job,” explains that a temporary administrator is usually appointed by a probate judge, because the named executor has died, renounced his or her rights to serve, or is unable to serve.

10.30.19Contesting a will is not for the faint of heart, but this is the process that lets a person legally challenge a will.

When there’s a will, there’s a way to challenge it, known as a “will contest.” If someone dies and they had a will, their estate goes through the probate process. The probate court is the jurisdiction for challenging a will.

Understanding how this works is important, if you’ve been named as a beneficiary of an estate or you’re concerned that your own will may one day be contested.

10.28.19While it’s possible for people to manage some parts of their loved one’s estate, very often the tasks feel overwhelming. When getting assets out of probate becomes too much of a challenge, it’s time for help.

There are instances when an executor knows they need to hire an attorney who focuses their practice on settling an estate immediately. That’s usually when there’s a lot of money at stake, or if the family has a history of fighting. Other times, the job of settling an estate starts out okay, then hits a roadblock, or becomes too emotionally draining.

KAKE.com’s recent article, “Do I Need to Hire a Probate Lawyer?: The Top Signs You Should Lawyer Up” says that trying to do this on your own can often be time-consuming and expensive. That’s why it’s smart to have a probate lawyer working with you.

5.20.19It’s been three years since music icon Prince died at his famous Paisley Park mansion, joining the ranks of many celebrities who died without an estate plan.

Prince’s estate, which includes master tapes of his recordings and a 10,000-square-foot Caribbean villa, has been estimated at $200 million. However, what it will be worth after years of battles between heirs, people claiming to be heirs, consultants and a court-appointed administrator, is anyone’s guess.

Page Six reported in its article, Fight over Prince’s $200M estate could go on for years, that Prince’s heirs are entrenched in a fight to rein in the estate’s administrator. They’ve spent more than $45 million in administrative expenses, according to a probate-court petition filed by Prince’s designated heirs.

Contact Information