Probate

Does Texas Have a Simplified Probate Process?

Published on: May 18, 2023 | By Thomas W. McCulloch

In Texas, the probate process can be overwhelming for beneficiaries and those involved in distributing a decedent’s estate. The good news, however, is that for those whose assets are below a certain amount, there is a simplified probate process available. This process is shorter and more efficient, but it still comes with several important procedural steps that cannot be avoided.

Who Qualifies for the Simplified Probate Process?

There are three basic requirements to qualify for the simplified probate process: the decedent must not have left behind a will, at least 30 days must have passed since the individual’s passing, and the value of all property belonging to the decedent must not exceed $75,000. This $75,000 amount does not include certain exempt property, which is more closely defined in the state statute laying out this procedure.

What Does the Simplified Probate Process Entail?

As the name suggests, this process is less costly and involved, but it still has certain important steps that must be taken. First, inheritors must fill out a form called a “small estate affidavit.” This form essentially tells the court what property and debts are involved in the decedent’s estate, and it lists the people that stand to benefit from the estate’s distribution.

An Overview of the Texas Estate Process

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

We have covered the definition of the probate process on our blog in the past, which is vital information for those developing their estate plans. Also relevant, however, is the specific procedure for probate in the state of Texas since probate works differently in each state and can have a unique set of rules and regulations. At McCulloch & Miller, we specialize in Texas law and are recognized as experts in the field of the probate process in Texas.

What is Involved in Probate in Texas?

In Texas, there are several steps that initiate the probate process once an individual has died. First, the person’s representative files a petition with the court, and beneficiaries, as well as creditors, receive notice that the probate process has begun. Representatives pay off debts and taxes, then distribute the remaining assets with the help of a probate court.

There are certain rules specific to Texas that apply to the probate process, and that might not apply in other states. For example, a decedent’s representative has four years from the date of death to file for probate. If four years come and go, and the representative has failed to file, the court will divide the decedent’s assets based on certain laws of intestacy, meaning rules that dictate which family members or loved ones receive a decedent’s assets when there is no valid will.

What is Probate and Why You Need to Know How Texas Probate Law Works

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

What is Probate and Why You Need to Know How Texas Probate Law Works

Many beneficiaries to a person’s will find themselves becoming familiar with the probate process once they try to access the funds that their loved one has left behind. It can be important to understand the probate process because it is often the vehicle through which a decedent’s assets are passed on, but it can be complicated and, at times, litigious. At McCulloch & Miller, we are committed to making sure all of our clients understand the probate process so that they can know what will happen with their assets (or the assets of their loved ones) in the future.

The Definition of Probate

Probate is the process of managing and administering the property, money, stocks, or other assets in a decedent’s estate. When a person leaves behind a will and asks that their estate be passed along to their named beneficiaries, that estate often must be reviewed by a probate court before the beneficiaries can access the assets. Typically, those involved in probate are the judge, the personal representative of the decedent, and those entitled to receive the decedent’s assets.

What Does Probate Involve?

The first step in the probate process is for the court to receive a petition for probate, indicating that someone has died and that their assets need dividing. At that point, the court mails notice to all named beneficiaries to let them know that the probate process has begun.

So You’ve Been Named as an Executor or Trustee, Now What?

Published on: April 24, 2023 | By McCulloch & Miller, PLLC

Being chosen as an executor or trustee can be a big responsibility, and it is not one that you should take lightly. If someone you know has asked you to serve either as an executor or trustee, that person believes that you will fulfill your duties in a trustworthy manner, consistent with their wishes. There are important takeaways that you should note if you have found yourself in one of these positions; but, as always, the best thing you can do to fully understand your role is to speak with an experienced, dependable estate planning attorney.

An executor is someone appointed to carry out a decedent’s will. A trustee, on the other hand, is appointed when the decedent has organized their assets in the form of a trust. The trustee has ultimate control over the administration of the trust, but he or she has a duty to follow the decedent’s instructions on how exactly to administer the decedent’s property.

The first thing you should do as an executor or trustee is read the documents left by the decedent, whether those documents come in the form of a will or a trust. The decedent might have left co-executors or co-trustees, for example, or might have written specific instructions about what should happen to the assets in the short-term future. There might be time limits on when these assets need to be distributed, and it is important not to delay the initial review of the will or trust.

Texas Probate Avoidance Strategies: How to Structure Your Assets for the Best Possible Outcome

Published on: March 21, 2023 | By David W. Miller

One very common fear among those starting their end-of-life planning is that the Texas probate administration process will be difficult for their family members after they are gone. It is true that probate administration can be complicated, and it is also true that there are ways that individuals can make sure their assets go directly into their beneficiaries’ hands instead of going through a probate court at all. At McCullough & Miller, we offer guidance as to how to structure your assets so that you can make things as simple and straightforward as possible for your loved ones.

As we have addressed on our blog in the past, Texas probate administration is a process by which a judge presides over the distribution of a decedent’s assets. The entire process takes anywhere from three months to several years, and it can get very complicated as a person’s loved ones try to make sure everything is done thoroughly, fairly, and efficiently after that person’s death.

Avoiding the Probate Process Altogether

There are, however, ways to make sure your money goes directly into the hands of your loved ones if you want to bypass the probate process with certain specific assets. For example, you can add what is called a “payable-on-death” designation to your bank accounts. This means that as soon as you die, a person you name will automatically receive whatever money is in that account. This account is then exempt from the probate process entirely.

A Guide to Navigating Texas Probate Administration

Published on: March 15, 2023 | By Thomas W. McCulloch

A Guide to Navigating Texas Probate Administration

When our clients and potential clients come to us after the death of a loved one, there can be a lot to think through in terms of distributing assets and getting affairs in order. One important process is the probate process, which happens when a Texas court distributes any of a decedent’s assets that are not already transferred by trusts or direct payments. The individual’s remaining assets are reviewed by this court, and the judge presides over the distribution process to ensure that everything is done fairly.

Step by Step: The Probate Process

Even if a recently deceased loved one had a will, that person’s estate will likely still have to go through the probate process. This essentially means that the individual’s executor or personal representative must file an application in a Texas court to let the court know that the individual has died and to request the court’s probate administration services.

Next, the court will hold a hearing on the decedent’s estate. Typically, the court will post some kind of announcement informing the public of the upcoming hearing so that anyone that thinks they have a right to be involved in the probate administration can have notice that the hearing will take place. At the hearing, the judge will begin by making sure the decedent’s will is valid and will hold up in court.

The Texas Probate Process Explained

Published on: September 30, 2022 | By David W. Miller

When a person passes on, many of their assets will have to go through probate. Understanding probate, or the process through which a court legally recognizes the death of a person and facilitates the distribution of their assets and the payment of their debts, is crucial to smart estate planning. A skilled estate planning attorney can help walk through this often complicated process.

How to Start the Texas Probate Process

Assuming an individual dies with a will, the executor in the will must file for probate. Generally in Texas, an executor has four years from the date of death to file, though the time frames vary in different local courts. If not, the estate will go through intestate succession, where close family members will receive assets according to predefined rules set out by the state. Simple estates can be probated within 6 months, but contested wills or complicated scenarios can take multiple years.

First, an application for probate is filed. Then, a notice of the probate application will be posted at the courthouse to alert anyone who may contest the will. If no contests are received in approximately two weeks, a hearing will begin. During this hearing, the decedent’s death will be recognized and a judge will validate the will and appoint an administrator or identify the executor.

Community Property’s Impact on Texas Probate

Published on: August 21, 2022 | By Thomas W. McCulloch

If you’re considering your end-of-life plans and want to ensure your family’s safety and comfort, you may already know and understand the need for a last will and testament. Understanding what happens after the will is drafted, however, is crucial to best position your estate for a seamless and hassle-free probate process for your loved ones. This includes understanding the legal classification of your assets.

Probate, or the process of distributing a person’s assets after death, can be a lengthy and complicated process. Through this process, the executor of the estate as named by a will must file an application for probate in the relevant county. Then the court will post notice of that application, opening up the process for contesting a will. Even if there is no contest to the will, a court must still hold a hearing to ensure the validity of the will and appoint the executor. Once the executor is appointed, the process continues—the executor must locate and distribute all assets, notify creditors, and resolve any disputes.

Some assets, however, are not so clearly defined. Even if you have employed a Texas estate planning attorney to minimize the assets that must go through probate, there will likely be assets remaining that must go through this process. These assets may include community property.

How to Avoid Probate in Texas

Published on: April 1, 2022 | By Thomas W. McCulloch

The estate planning process can be complicated for those just beginning since there is a lot to learn. Because of this, most people do not know how probate can impact estate planning overall. Probate is the court administration of an individual’s estate—which occurs after they have passed away. Depending on the amount of planning an individual has done before they die, the probate process may either be smooth or difficult. Below are some common questions and explanations about the probate process and how Texas estate planning attorneys advise their clients on these issues.

What is Probate?

After a person’s death, the court reviews the deceased’s debts in probate—if they had any—and then distributes their remaining assets to loved ones. Most people are surprised that regardless of if the person had a will or not, they will go through the probate process. If the person had a will in place, called a testate, then the process is much easier and is less likely to be questioned. However, if the person did not have a will, called intestate, the process is often much more complicated. This is another reason why it is critical to have an estate plan in place.

What Does it Mean to Die Intestate in Texas?

Published on: March 29, 2022 | By Thomas W. McCulloch

Life happens, we get it. Therefore, most individuals put off estate planning. However, there are major downsides when this is avoided for too long and they unexpectedly pass away. When someone dies without a will, it is called dying intestate. There are many consequences dying intestate in Texas, including that the decedent does not get to choose who will receive their assets— their funds, property, and items. Because there are benefits to drafting an estate plan and ensuring one does not die intestate, below are examples of the dangers of intestate property and resolution to this issue.

What Problems Can Arise from Not Having an Estate Plan?

When someone dies without a will, they do not have the ability to decide who will receive their possessions. This occurred to famous artist Henry Darger, whose family entered into a long-drawn-out legal battle. When Darger died without a will in place, his landlords—who helped bring notoriety to his art—had ownership of his pieces of art, some of which have been appraised at close to $800,000. Now, long-lost relatives of Darger have filed a lawsuit, arguing they are the rightful beneficiaries of his property. The landlords are arguing that Darger told them that they could keep or discard his possessions.