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Simply stated, probate is a lawsuit filed by your heirs, in a local court after you pass away. It is the legal process of settling an estate under the jurisdiction of the Probate Court. Often it is just the stress of going to Court that affects our clients. However, “probate” is required in order to “admit a Will to probate.” Our attorneys will alleviate this stress, we are in front of the Travis County Probate Court and the courts in the surrounding counties routinely and will guide you through the process. Once the Will is admitted to probate, it becomes a part of the public record. Then there is a “recipe” or process with several steps that are required. Including, once qualified, the “executor” or “administrator” will be required to gather and inventory the client’s property and pay the debts of the estate if the claims are properly presented to the representative. One of the last steps required by the Court is a properly filed Inventory of the decedent’s assets which is also a part of the public record. While the executor or administrator is responsible for “probating” the Will and inventorying the assets, the process is generally controlled by the Court. In order to satisfy the Court’s rules and the law, the executor or administrator almost always requires the assistance of the probate attorney. We can help you complete the required action items and properly distribute the estate. Only assets titled in the decedent’s name will pass according to a Will and are probated. Non-probate assets titled in the name of a trust, jointly held assets, or accounts naming a beneficiary, are not subject to probate. Although Texas has an efficient and generally cost effective probate process, provided the decedent has a properly drawn Texas Will, probate can be expensive and time consuming in many situations.
Texas has several types of probate proceedings, which are different in the time required and expense. The probate procedure a client needs will depend upon the nature of the decedents assets, whether the decedent has a valid Texas will and the total dollar value of the assets. The most common processes are as follows:
The most time efficient and cost effective probate procedure for mid-size to large estates. A valid Last Will and Testament is admitted to probate and Letters Testamentary are issued. Unsecured creditors are served with the Notice to Creditors. Secured creditors are also notified and may in turn file a Statement of Claim. The Independent Executor appears in Court to qualify then files and Inventory with the Court but otherwise acts “independent” of Court oversight.
This probate procedure is used when an estate has numerous debts or if the Will does not name an independent executor or the named agent does not qualify as an independent executor. All actions in a dependent administration require court action in order to take the action. This is usually the most costly and time consuming proceeding.
Determination of Heirship – “Intestate”
If decedent dies without a Will or without a valid Will, the court will determine who the heirs of the deceased are based upon Texas Law. This will require “notification” of all potential heirs. This may also result in a dependent administration. This can be a costly and inefficient means of distributing an estate. The State of Texas plan for heirship provides for different distributions to various heirs based upon degree of blood relationship and type of property. These issues can be eliminated with a Will.
Muniment of Title, Small Estate Administration, Affidavit of Heirship, and several other proceedings may be instituted. (Call our office for details.)
These proceedings are in many cases, solutions to cases where there are very few assets, no Will was probated within the required 4 years or as “curative” measures. They are typically much less efficient than an Independent Administration.
Depending upon the gross value of the assets of the estate, inclusive of insurance and other “non-probate” assets, federal estate tax may be due. The gross estate includes trust assets, life insurance, assets held in the decedent’s name, jointly held property, accounts designating a beneficiary, life insurance, annuities, etc. The estate tax return (IRS form 706) is due 9 months after death. This return is also used, since 2012, to preserve the “portability” of the first to die’s unused estate tax exemption (the DSUE amount). We prepare these returns for our clients.
Probate can be avoided with careful planning. There are several techniques available that enable an estate to avoid the time, expense and public nature of a probate. But the most comprehensive and streamlined way to avoid probate is by placing assets in a Revocable Trust, because trust assets, in most situations, can be distributed to beneficiaries almost immediately after the death of the trust-maker and without making any of the assets or provisions in your Will a part of the public record or domain.