Probate

Does Probate Always Require a Lawyer in Texas?

Published on: December 14, 2023 | By McCulloch & Miller, PLLC

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.

Can You Sell Property During Probate in Texas?

Published on: December 11, 2023 | By Thomas W. McCulloch

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.

What is the Cost of Probating a Will in Texas?

Published on: December 2, 2023 | By David W. Miller

What is the Cost of Probating a Will in Texas?

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.

What is an Application to Determine Heirship in Texas?

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

At times, navigating probate is a relatively straightforward process. Other times, though, the process can be messy – especially when it is unclear who an individual’s heirs are and who should receive the individual’s property. In today’s blog post, we discuss one way to navigate this issue – namely, by filing an application to determine heirship.

Importantly, an application to determine heirship always involves the probate court, and it always involves a hearing before the court. The purpose of the hearing is to determine who, exactly, should receive a decedent’s property. The hearing can take place either when a decedent’s estate has not been administered (as long as there is some property in Texas) or when property in Texas was left out of a decedent’s will.

What Happens During the Hearing?

When this kind of hearing takes place, the court begins by figuring out if the property at issue is separate property, meaning the decedent was the sole owner, or community property, meaning there were others involved. Once it has made this determination, the court looks at the Texas Estates Code to determine who should inherit the property.

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.