Houston Estate Planning and Elder Law Attorney Blog

How to Avoid Probate Delays in Texas: Common Pitfalls and Proactive Solutions

Published on: December 15, 2024 | By Thomas W. McCulloch

How to Avoid Probate Delays in Texas: Common Pitfalls and Proactive Solutions

If you are left to handle a loved one’s estate after he or she dies, you will likely be looking to wrap everything up as efficiently as possible. The longer probate drags on, the more time and money it can end up costing everyone involved. As long-standing Houston estate planning attorneys, we are all too familiar with some of the common pitfalls that estate administrators face, and we know how to take steps to proactively avoid the pitfalls and the delays that accompany them.

Pitfall #1: Familial Disputes

As a will passes through probate, third parties have the opportunity to dispute the validity of the will. Oftentimes, a third party will argue that the decedent was not of sound mind while writing the will or that another person fraudulently influenced the decedent during the process. These disputes, in turn, can hold everything up and delay the probate process. To avoid this scenario, we recommend that anyone writing a will or estate plan communicate early and often with their family members and beneficiaries. By taking the time to ensure your loved ones are aware and understanding of your choices, you can minimize the chance of a dispute down the road. As an estate administrator, take the time to meet with family members early on in the process, and try to work out any potential disputes outside of the probate courts.

Navigating Ancillary Probate in Texas for Out-of-State Property Owners

Published on: December 11, 2024 | By Thomas W. McCulloch

If you live outside of Texas but own property inside of Texas, your estate plan will likely be subject to the ancillary probate process. Ancillary probate is the legal process through which a non-state resident gets his estate plan (only as the plan relates.to in-state property) approved by a state probate court. For example, if you live in Colorado but have a vacation home in Texas, your estate administrator will have to use a Texas probable court in order to transfer the vacation home to a beneficiary when you die.

Ancillary Probate

Ancillary probate in Texas is relatively straightforward. It requires a probate application in Texas, typically filed at the same time as the regular probate application filed in the decedent’s state of residence. In our Colorado example, the decedent’s estate would go through probate in Colorado and, simultaneously, would go through ancillary probate in Texas for the vacation home.

The state of Texas requires ancillary probate for real property and business interests in Texas-based companies. Other types of asserts, whether bank accounts, investment accounts, or retirement accounts, stay in the decedent’s residential state. Importantly, the “residential state” is the individual’s home state at the time that he or she died.

What Happens When a Texas Executor Fails to Fulfill Their Duties

Published on: December 10, 2024 | By David W. Miller

Probate is already a stressful process; if an executor fails to fulfill their duties, the process can be even more stressful than it needs to be. While in an ideal world, every estate executor would operate in a timely and thorough manner, this is not always the case. What happens, then, when a Texas executor fails to fulfill their duties under the law?

What is an Estate Executor?

An estate executor is the person responsible for handling a decedent’s estate once that person dies. The executor has responsibilities such as paying the decedent’s remaining taxes and debts, notifying beneficiaries, maintaining an accurate list of the decedent’s assets, initiating proceedings in the corresponding probate court, and distributing assets to the decedent’s loved ones once everything has been approved. The executor is responsible for completing all of these steps in a timely manner.

Options if an Executor Does Not Do Their Job

If a beneficiary is concerned that an estate executor has failed to fulfill their duties, there are several options available. The first and perhaps most sensible option is to file a notice in the probate court, advising the court that the executor has not acted according to their responsibilities. This petition can ask the court to appoint a new executor. While this process can take time, it is often the best option in the long run if the executor is failing act in good faith. Once the court appoints a new executor, that executor will take over the probate process.

The Role of Independent Executors in Texas Probate

Published on: December 9, 2024 | By Thomas W. McCulloch

As you may know, an estate executor is a person appointed by an individual to carry out the terms of his or her will. In Texas, there is a distinction between an independent executor and a dependent executor. An independent executor has the authority to carry out the will’s terms with minimal court supervision. A dependent executor, on the other hand, needs court approval for most of what he or she needs to do. On today’s blog, we review some of the basic responsibilities and challenges of the independent executor.

Benefits of the Independent Executor

It might be obvious that the independent executor saves time and money, given that there is less court intervention needed during probate. Many estates with an independent executor benefit from quicker estate settlement because the executor can move forward with minimal need for the court’s involvement.

Roles of the Independent Executor

The independent executor has a wide range of responsibilities, including taking stock of the estate’s assets, ensuring debts and taxes are paid, and doling out the estate’s remaining assets to the testator’s beneficiaries. Independent executors have the authority to make decisions about the possible sale of property, settlement of claims, and distribution of assets without involving the court.

The Texas Heirship Affidavit Process: An Alternative to Formal Probate

Published on: December 5, 2024 | By Thomas W. McCulloch

An affidavit of heirship is a legal document that formally lists the heirs to a decedent’s property. When does the affidavit of heirship come in handy? And what is the process for filing this kind of affidavit? On today’s blog, we talk through some benefits of the affidavit and provide the basic information you would need in order to move forward with the filing process.

Why Use an Affidavit of Heirship?

Importantly, a decedent’s loved ones can only use an affidavit of heirship if the decedent passed away without a will. The affidavit comes in handy because it allows an individual’s beneficiaries to bypass probate, which saves significant time and money. Instead of having to probate a decedent’s property, the heirs can instead submit this affidavit, which a) declares the decedent’s heirs to the court and b) evidences the transfer of ownership from the decedent to these heirs. An affidavit of heirship cannot be used to transfer money in the form of a bank account; it only comes into play when there is real property that needs to be transferred.

How to Use the Affidavit of Heirship

If your loved one died without a will and had real property to pass on, you might want to consider filing the affidavit of heirship. To use this affidavit to bypass probate, you should list the decedent’s heirs and assets on the document provided by the probate court. Then, all the heirs need to sign the affidavit in front of a notary public. The heirs should then submit the affidavit to both the court in the county where the decedent died and to the county where the decedent owned property. If and when the court approves the affidavit, the process is complete.

Probate for High-Value Estates in Houston

Published on: December 4, 2024 | By David W. Miller

At McCulloch & Miller, we specialize in probate and estate planning. As our clients know, most estates in Texas need to go through probate once the estate owner dies. For those clients with high-value estates, the probate process can be a bit lengthier and more complex. How should individuals with higher net worths prepare for probate? What should loved ones expect from the process? On today’s blog, we cover some of the basics that people with significant assets should consider as they think through their own probate processes.

Consideration 1: Length of Time for Probate

The more complex an estate, the longer probate can take. As a general rule in Texas, probate takes approximately six months from the date of filing. For high-value estates, however, expect a longer and more drawn-out process. The court might, for example, require additional time to review the decedent’s estate plan or to conduct appraisals so it can accurately value the property’s assets.

Consideration 2: Tax Liability

If you are a high net worth individual, your estate will likely be subject to taxes such as estate taxes and capital gains taxes. In order to prepare for this reality, we recommend that you consult with a Houston estate planning attorney as soon as possible; this attorney should be able to help you prepare your estate to guard against these taxes. You can, for example, put assets in a trust or pass along money to your heirs while you are still alive in order to avoid some of these tax liabilities.

How to Avoid a Contested Probate in Texas

Published on: November 29, 2024 | By David W. Miller

If you go through the trouble to carefully draft and execute your estate planning documents, you want your loved ones to respect your wishes for your assets. Sometimes, though, heirs contest their loved ones’ wills after their loved ones are gone. The most common reasons that descendants contest a will include fraud, undue influence, and testamentary capacity. Maintaining an awareness of these possibilities is the first step to protecting your will or estate plan from being contested. There are methods, though, that we recommend you keep in mind in order to give yourself the best possible chance of avoiding a contested probate process in Texas.

Consider a Trust

If you choose to put assets in a trust instead of a will, the assets avoid probate altogether. The trust has several major benefits, one of which is that it offers less opportunity for loved ones to contest the distribution of assets. Probate is a long, drawn-out legal process, and it can sometimes get messy if heirs or other third parties want to challenge the legality of a will. By putting assets into a trust, heirs automatically get the assets left by the decedent and avoid probate altogether.

Consult an Experienced Houston Estate Planning Attorney

One of the best ways to guard against a contested probate is by talking with a Houston estate planning attorney to ensure your estate plan is both legally valid and enforceable. It can be tempting to use “DIY” wills online, and while it seems easier and less expensive in the short term to use these online tools, it can often end up leading to drawn out, complicated probate processes later on. We therefore recommend investing the time and money into consulting with an attorney early in your process to make sure your will has everything it needs.

What Happens If There Is No Will? Navigating Intestate Probate in Texas

Published on: November 27, 2024 | By David W. Miller

In an ideal situation, if you are left to handle a loved one’s affairs after they pass, you have your loved one’s detailed will or estate planning document at your disposal. Sometimes, however, individuals die without a will, and their heirs are left to navigate intestate probate in Texas. The word “intestate” literally means that a person dies without a will, and intestate probate is different from (and more complicated than) probating an estate that includes a will. On today’s blog, we review the basics of the intestate probate process for those who might need guidance as they handle their loved one’s affairs.

Step 1: Appoint an Administrator

Because the decedent will not have named an executor, it falls on the court to appoint an administrator for the estate. Typically, an attorney will notify the court that an individual has died, and that attorney will ask the court to appoint an administrator. The administrator will then be responsible for naming the possible beneficiaries of the decedent’s estate. Importantly, the court must issue Letters of Administration during this process; these letters detail the administrator’s authority to act on behalf of the decedent’s estate.

Step 2: Review the Estate

The administrator will need to take time to review the decedent’s assets and debts, including bank accounts, real property, investment accounts, and sentimental or valuable items. Once the administrator is armed with this information, he or she can determine how to administer the estate. In order to administer the relevant assets, the administrator will need to file an affidavit of heirship. This formal document lists the decedent’s heirs and the assets, and all heirs need to sign and notarize the document (along with two witnesses).

Texas Heirship Law

Published on: November 23, 2024 | By Thomas W. McCulloch

In Texas, if a person dies without a will (or if a person leaves property out of their will, intentionally or mistakenly), there are laws that dictate how the state distributes the relevant property. Texas heirship law can seem complicated at first, but today’s blog aims to simplify the process for those whose loved ones died without clear instructions for their property.

In order to decide who inherits a decedent’s property when that property is not accounted for in a decedent’s will, the probate court must first determine the decedent’s heirs. The court will take into consideration three main circumstances when investigating the heirs: the marital status of the decedent; the type of property at stake (separate/nonmarital or community/marital); and whether the decedent had children.

Heirship Law Without a Spouse Involved

If a decedent died without a spouse, the process is relatively straightforward. In this circumstance, the estate goes to the decedent’s children. If there are no children involved, the estate goes to the decedent’s parents, or to his or her siblings if the parents are no longer living. In some circumstances, a decedent dies with no living relatives. If this happens, the person’s estate goes to the state of Texas.

Heirship Law with a Spouse Involved

If a decedent died with a spouse, that person’s separate property is divided as follows: one-third of the estate goes to the spouse, while two-thirds go to the children. If the decedent had no children, the spouse inherits all of the separate property.

How to Handle Debts and Taxes in Probate

Published on: November 22, 2024 | By David W. Miller

The probate process can vary in complexity, depending on the size and nature of a decedent’s estate. While many executors think first and foremost about the assets in a decedent’s estate, it is equally important to consider the debts and taxes that might be involved. Without addressing these crucial elements, it is impossible to have an accurate accounting of how much a person has left behind in his or her estate plan.

Part of every estate executor’s job is to thoroughly review the estate at issue. The estate could include real property, cash, bank accounts, investment accounts, retirement accounts, and tangible items that the decedent left behind. The estate could also include outstanding debts and unpaid taxes. How do you handle these debts and taxes? How do they effect the rest of the estate?

Paying Taxes

It is the responsibility of the estate executor to file the decedent’s final tax return. The executor must ensure that all of the individual’s taxes are paid, whether the taxes are federal, state, or local. The payments for these taxes come directly out of the decedent’s estate.

Paying Debts

The executor must also handle any debts on the estate. These debts could include bills, mortgages, or loan repayments, which can all add up over time and which the decedent might not necessarily have been open about during his or her lifetime. One requirement during the probate process is that the court must give debtors an opportunity to file a claim on the estate in order to notify the executor that the decedent owed them money. Only after creditors are given sufficient opportunity (and only after the debts have then been paid) can beneficiaries begin to inherit from what is left over in the estate.