Articles Posted in Probate

There is so much about probating a will that can be difficult to figure out, and without the right information at your fingertips, it can be easy to let parts of the process fall through the cracks. If you have a loved one that has recently passed and you need to make sure his or her will goes through probate, you want to make sure you leave no stone uncovered. By working diligently, you can finish up probate as efficiently and thoroughly as possible, enabling yourself to move forward with your life after the process is complete.

How Do I Begin Probating a Will?

If your loved one has passed, and that person did leave a will, the first thing you will have to do is file an application for probate with the court. Importantly, there are different probate courts in Texas, and you will want to make sure you file the application with the court in your area (i.e., your jurisdiction). As a general rule, loved ones have four years from a decedent’s death to file an application for probate.

What Will the Probate Court Require Before Approving a Will?

The probate court will first require you to wait for a period of time so that it can provide notice to anyone who might think he or she has a right to the decedent’s assets. After this period of time (typically two weeks), the court will hold a hearing. At this hearing, the judge will decide whether the decedent’s will is valid.

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On our last blog, we began discussing letters of testamentary. These letters are documents produced by a probate court that allow an executor to prove that he or she has the authority to administer a decedent’s estate. To take it a step further, today we discuss when you might need a letter of testamentary, so that you can have a better understanding of the context in which these letters come into play.

The letter of testamentary is important for the executor of an estate. An estate’s executor is the person who is responsible for carrying out a deceased person’s last will and testament. Sometimes, when the executor starts to organize, disburse, or use the funds in a decedent’s estate, he or she needs the letter of testamentary to prove that he or she has the authority to withdraw money from certain accounts or use the money for certain purposes.

For example, an executor might need a letter of testamentary to access a decedent’s bank account, pay off the decedent’s debts, or distribute the decedent’s assets to his or her loved ones. There are also very practical circumstances in which a letter of testamentary could come into play – for example, the executor might need the letter when paying for funeral expenses or when making sure that the decedent’s loved ones receive proceeds from the individual’s life insurance.

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The probate process can be complicated. Often, our clients come to us overwhelmed by how many steps can be involved and how many hurdles they have to jump through. One such hurdle can be a letter of testamentary, which is sometimes produced during probate proceedings. Today’s blog will cover the basics of letters of testamentary, but to make sure you properly address the procedural requirements in your own probate case, the best thing you can do for yourself is to speak with a Texas estate planning attorney who knows the ins and outs of the process.

Who Provides the Letter of Testamentary?

Oftentimes, a probate court will provide an estate executor with a letter of testamentary. This letter is a document that the executor can take to a bank, a financial institution, a creditor, or any other party that needs to release funds belonging to the decedent. Oftentimes, financial institutions will only release a decedent’s funds if the executor shows up with this official letter of testamentary, proving that the probate court has authorized the distribution of funds.

Letters of testamentary, in short, give the executor the authority that he or she needs in order to fulfill the job of the executor. If a decedent says in his will, for example, that all of the money in his bank account will go to his children, the letter of testamentary gives the executor the power to retrieve the money from the bank (so that the children can then receive the funds).

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In thinking through the probate process, there are various nuances and procedures that are important to keep in mind. One term that you might hear while undergoing probate is “dependent administration” vs. “independent administration.” While there are similarities between dependent and independent administration, it is also important to know the difference between the two as you prepare to complete the probate process.

What is Independent Administration?

As we have discussed previously on our blog, the executor of an estate is the person in charge of setting a decedent’s estate. In Texas, independent administration allows an estate’s executor to have minimal court supervision during the probate process. This kind of administration is only allowed if the descendent named a specific executor in his or her will, or if all of the estate’s beneficiaries agree to a specific executor.

When one of these two conditions is met, the court is then minimally involved in the probate process. Typically, all that needs to happen for probate to move forward is that the judge must approve the list of assets in the decedent’s estate. The estate’s executor can then distribute the assets from there.

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As many individuals in Texas know all too well, the probate process can be long and drawn out. Waiting for a decedent’s assets to be distributed can take months, which often makes things difficult for beneficiaries who might need more immediate access to their loved one’s funds. In Texas, however, there is an option called Muniment of Title that allows for a quicker probate process. Muniment of Title is not for everyone, and there are certain procedural requirements that individuals must consider when thinking about whether to use this option in their estate planning strategies.

What is Muniment of Title?

The word muniment literally refers to documents that allow an individual to defend his or her right to an estate. Muniment of Title, then, is a specific tool in the probate process that shortens the time necessary for probate to move to completion.

In Texas, the Muniment of Title is discussed in the Estates Code Chapter 257. The provision states that when a person dies with a will, and without any debts, that person can potentially use Muniment of Title to bypass some of the procedural and logistical requirements of probate.

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Among the many tools available to those sorting through a loved one’s estate, the affidavit of heirship can be particularly useful for individuals whose loved ones might not have left behind a will. In Texas, the affidavit of heirship can be an incredibly practical way to transfer property ownership from a decedent to his or her heirs, but the process involves several procedural hoops that are important to keep in mind. At McCulloch & Miller, we help clients deal with these sorts of filings with the ultimate hope of helping them achieve their familial and financial goals.

What is an Affidavit of Heirship?

The affidavit of heirship is a document that a decedent’s heirs can submit to the probate court. It is typically used in two different scenarios: 1) when the decedent did not leave behind a will and 2) when the decedent’s estate did not pass through probate in the first four years after his or her death.

The affidavit allows heirs to receive property that the decedent intended to leave for them. By submitting the affidavit, heirs can essentially ask the court to transfer title of their loved one’s property to their own name(s).

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Both fortunately and unfortunately, the Texas probate process can be very complex. This is fortunate for many clients because it gives them different tools to creatively and efficiently create an estate plan that works for them. It is unfortunate, though, because many of these tools require significant amounts of time and money to implement. One tool that many clients find simpler to utilize is the Small Estate Affidavit, which bypasses some of the more complicated procedural requirements of probating a will and which we will review on today’s blog.

What is the Small Estate Affidavit?

A Small Estate Affidavit is a quick and cost-effective way to move through the probate process. By filling out a Small Estate Affidavit, many individuals finish the entire probate proceedings more efficiently than they would if they were to go through the entire process of a full probate administration.

To access the Small Estate Affidavit, there are many requirements, including: the decedent must have left behind no more than $75,000; the decedent must have died without a will; and the assets in the decedent’s estate must outweigh the debts.

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The Texas probate process is not one to be taken lightly; every procedural step must be done correctly in order to make sure nothing falls through the cracks, and no stone is left unturned. While the process can be lengthy, we at McCulloch & Miller are experts in navigating the probate courts and are pleased to offer our clients everything they need to make sure the process goes as smoothly as possible.

When an individual dies in Texas, that person’s assets and debts get distributed to his or her loved ones, typically in accordance with his or her will or other estate documents. Before this can happen, however, the probate court has to review the person’s will, notify other possible beneficiaries, and decide that the will meets the necessary requirements for the assets to be distributed.

If your loved one has recently passed away and you are looking to begin the probate process, the first thing you need to do is acquire a death certificate on behalf of your loved one. Filing the death certificate with the probate court allows the court to be sure that the individual has died and to make that certificate becomes part of the official court record.