Probate

Transferring Real Estate in Texas Outside of Probate

Published on: November 15, 2023 | By McCulloch & Miller, PLLC

Passing real estate to beneficiaries can be more complicated than you might think. If you own property, there are several steps you must take in order to ensure your property passes down to your chosen beneficiaries. In general, real estate will go through the probate process, but there are a couple of ways to avoid probate if you are looking into transferring real estate as a part of your personal estate plan.

Option One: Transfer on Death Deeds

The first option for those who wish to avoid probate when transferring real estate is called the transfer on death deed. This deed allows a property owner to transfer his or her interest immediately upon death to whoever he or she names in the deed. The deed has to meet certain procedural requirements, like being in writing and being signed in the presence of a notary. Without these requirements met, the court might end up having the property pass through probate despite the property owner’s earnest attempt at avoiding it.

Option Two: Life Estate Deed

A life estate deed looks slightly different than a transfer on death deed. It gives legal title to the chosen beneficiary during the property owner’s lifetime. While the legal title no longer belongs to the original owner under this kind of deed, the owner does maintain the right to live on the property during his or her lifetime. This option can be a nice middle ground for estate planners, in that it makes the inheriting process easier for beneficiaries while still allowing them the benefit of residing on the land during their lifetime.

What You Need to Know About Probating a Will in Texas

Published on: October 30, 2023 | By David W. Miller

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.

Texas Probate FAQs

Published on: October 23, 2023 | By Thomas W. McCulloch

In Texas, going through probate can either be relatively simple or incredibly complex, depending on the decedent’s assets, the potential beneficiaries involved, and the estate documents that the decedent left behind. On today’s blog, we cover several frequently asked questions that our clients bring to the table, in the hopes that we can make the process a bit more straightforward for you.

What is Probate?

Probate is the administration of a decedent’s will or estate documents. In general, when a person dies, that person’s will must be approved by a probate court before the beneficiaries can have access to his or her assets. In Texas, the probate process can take anywhere from a few months to a couple of years.

Is Probate Mandatory?

In Texas, every individual’s estate must pass through probate, although there are some ways to avoid probate altogether. For example, by creating a trust or by acquiring assets jointly with another person, you may be able to avoid having your assets go through the probate court. Every person’s estate is unique, and the possibilities for avoiding probate depend heavily on the nature and complexity of the assets involved.

When Do You Need a Letter of Testamentary?

Published on: October 17, 2023 | By David W. Miller

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.

What is a Letter of Testamentary in Texas?

Published on: October 13, 2023 | By Thomas W. McCulloch

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).

How Long Does Probate Take in Texas?

Published on: August 23, 2023 | By Thomas W. McCulloch

It is common to feel frustrated by the probate process, especially because it often comes at a time when families are already dealing with intense grief and high tensions. Unfortunately, going through probate means that certain elements are outside of your control, and one of those elements is how long the probate process takes.

As we have covered previously on our blog, probate is the process by which a court settles the estate of a decedent. The court generally reviews the decedent’s will or estate documents, validates those documents, settles any possible disagreements, and makes sure the decedent’s assets are then distributed to her or his beneficiaries.

The amount of time that probate takes depends on a variety of factors. We rarely see cases in which probating a will takes more than one year, although of course, there are always exceptions. If a person’s estate is more complicated, it will take more time to move through probate; for example, if the decedent had significant assets or debts, the court might take longer to review the decedent’s will.

What Is the Difference Between a Dependent and Independent Probate Administration?

Published on: August 14, 2023 | By David W. Miller

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.

What is Muniment of Title in Texas?

Published on: July 10, 2023 | By Thomas W. McCulloch

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.

What is a Texas Affidavit of Heirship?

Published on: July 10, 2023 | By David W. Miller

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).

How a Small Estate Affidavit Can Simplify the Texas Probate Process

Published on: July 3, 2023 | By David W. Miller

How a Small Estate Affidavit Can Simplify the Texas Probate Process

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.