Houston Estate Planning and Elder Law Attorney Blog

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 Should You Bring When You Meet with Your Estate Planning Attorney?

Published on: December 2, 2023 | By Thomas W. McCulloch

If you are preparing for an initial meeting with an estate planning attorney, you are taking a great first step that will help protect your loved ones down the road. If it is your first meeting, though, you might have questions about what the meeting will entail or what you should do to prepare. On today’s blog, we walk you through what you should bring when you meet with an estate planning attorney, so that you can be as prepared as possible and get the most out of your time together.

Financial Documents

The first and most important set of documents to bring is your set of financial documents. These include mortgage documents, car titles, tax returns, and rental agreements. While you don’t have to necessarily bring bank account statements, you should have a good idea of where those accounts stand so that you can provide that information to the attorney. Many firms, including McCulloch & Miller, will send you a family document checklist that you can use to begin organizing these financial documents before you come in for your meeting.

Non-Financial Documents

This second category of documents is also important. If you have papers relating to a divorce, a marriage, an adoption, or a custody case, these can be critical for the estate planning attorney to keep in mind. Additionally, if you have done any type of estate planning in the past, bringing those documents will be helpful for your estate planning attorney to see.

Are Stepchildren Entitled to Inherit Under a Texas Will?

Published on: November 30, 2023 | By Thomas W. McCulloch

When parents begin their estate planning processes, they have many variables to consider, and it is always difficult to make decisions about which assets should go where. One variable that many of our clients want to think through is the possible addition of stepchildren to a will or estate plan. On today’s blog, we cover whether or not stepchildren are entitled to inherit the money and property that their stepparents leave behind.

In short, stepchildren only inherit a stepparent’s assets when those stepchildren are explicitly included in the stepparent’s will. Even if the stepparent lived with and cared for the stepchildren just as they would their own children, under the law, these stepchildren do not have automatic access to their stepparents’ assets. The decedent’s estate documents must lay out exactly which stepchildren inherit, as well as how much they are to inherit.

Similarly, if you have biological children that live elsewhere, those children might have automatic rights when you die, whether or not they are actively and currently involved in your life. For example, if you die without a will, the probate court could easily decide to distribute your assets to sons and daughters from which you are estranged. In the legal world of estate planning, it does not matter how close or distant you are from your biological children; they might have rights to your assets unless you stipulate otherwise in your will.

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.

Are Adopted Children Entitled to Inherit Under a Texas Will?

Published on: November 22, 2023 | By Thomas W. McCulloch

For parents that have adopted children, it is important to understand how the law understands adopted children to be part of their families. In the estate planning process, our clients that have adopted children often want to make sure that their kids are well taken care of after their passing. Today, we cover whether adopted children are able to inherit once their parents die.

Under the law in Texas (specifically, Texas Estates Code Section 201.054), adopted children are considered the children of their adopted parents. Therefore, even if a child is adopted, that child inherits as if he or she were the biological child of his or her parents. This comports with adoption laws nationwide, which generally consider an adoptive child to have the exact same rights and privileges as a biological child.

Importantly, this section applies to children adopted through formal procedures; thus, if you have “informally” adopted a child, or if you consider a child to be like your adopted child, this section will not apply to you. The State of Texas must recognize the familial relationship in order for this provision to treat you and your adopted children as though you are biologically related. Understanding this is crucial to avoid one of the more common estate planning mistake among adoptive families.

How to Demand an Accounting from an Executor in Texas

Published on: November 22, 2023 | By David W. Miller

If you are either a beneficiary or a possible beneficiary of a decedent’s estate, and if you have questions about that estate, it is only right that you are provided the answers you need. Sometimes, estate executors can be hesitant to provide information, and if you suspect negligence or wrongdoing, time is of the essence. Fortunately, in Texas, there is a way to demand an accounting (or a summary) of the estate happenings from the executor that is in charge of the estate.

Section 404.001 of the Texas Estates Code

In the Texas Estates Code, legislators provided a clear solution to the problem of not having enough information from an estate’s executor. According to this section of the Code, any interested parties in an estate have the right to demand an accounting from the executor. These interested parties could be beneficiaries, possible beneficiaries, debtors, or creditors.

This provision of the Code can be used as long as 15 months have passed since the estate executor was appointed. Once an individual asks for the accounting under this section of the Code, the executor has 60 days to comply and provide the individual with the relevant documentation.

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.

Can a Small Estate Affidavit Eliminate the Need for Probate?

Published on: November 15, 2023 | By David W. Miller

woman retirement risks and estate planning

In Texas, it is a general requirement that a decedent’s estate plan must go through probate before beneficiaries inherit the property, assets, or debts that their loved one left behind. There are ways to avoid probate, however – some of which we have focused on in this blog. Avoiding probate is an important goal for many families, because probate can be both costly and time-consuming. For those Texans whose estates qualify as a “small estate”, the probate process can be greatly simplified, saving everyone time, money, and resources during a difficult time.

What is a Small Estate Affidavit?

In Texas, there are several requirements that an individual must meet before filing a small estate affidavit. The person’s assets, first and foremost, must add up to $75,000 or less (not including certain exempt property). The person must have died without a will, and the person’s assets must be greater than his or her debts. A court must approve a person’s small estate affidavit after he or she files it, allowing the court to review the forms and make sure everything is above board.

What Are the Benefits of Filing a Small Estate Affidavit?

If you file a small estate affidavit, you essentially communicate to the probate court that the estate in question does not need to go through all of the steps that other, perhaps more complex, estates must go through. Once you file, you may or may not have to appear in probate court for a hearing. Some counties will approve the affidavit without a hearing, and others will require the filer to come in and speak with the judge.

Estate Planning for Young Professionals: What You Need to Know

Published on: October 30, 2023 | By McCulloch & Miller, PLLC

Estate planning is an essential part of any adult’s financial future. A common misconception, however, is that estate planning is only for older individuals. In reality, it is a process that all adults, no matter their age, should consider. At McCulloch & Miller, we speak to many young professionals that want to develop a plan for their assets and their debts; our biggest piece of advice for these clients is that they get started on their own estate planning journeys as soon as they possibly can.

Reasons to Begin Estate Planning

Young professionals might think that since they have not yet built up the assets they hope to acquire as older adults, they do not have any reason to develop an estate plan. However, generating an income, starting a family, purchasing a home, and acquiring debt are all reasons to speak with an attorney to start putting together an estate plan.