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Probate

Probate

Probate is the process of collecting and transferring title of an individual’s assets following their death, along with settling debts owed by their estate. The probate process and its complexity vary, depending on whether the individual left a will, what is in the will, and the amount of the assets and debts of the estate. A properly drafted will allows for transfer of your assets following your death individuals of your choice. If you do not create a will, Texas law determines who will receive your property when you pass away. This can make the probate process can be significantly more costly, difficult, and time consuming.

Probate may be unsupervised or supervised. In unsupervised probate, the appointed estate administrator manages assets, pays debts, files tax returns and court documents, and distributes the estate assets. In supervised probate, the probate judge must approve every single detail of the estate administration.

Is probate difficult?

In Texas probate is fairly straight forward.is among the most straightforward in the nation. With a properly drafted will, probate in Texas can require very little court oversight.

What is an executor?

The executor is responsible for carrying out what is specified in your will. Their responsibilities include collecting and protecting the assets in your estate, paying off debts and taxes owed by your estate, and distributing the assets in accordance with your will. An executor has the responsibility to manage and care for the estate property as a prudent person would care for his own property.

What is an “independent executor?”

Texas allows you to designate your executor to serve as an “independent executor.” This means that the executor will serve with minimal court supervision. Making your executor an “independent executor” can save your estate money and expedite probate.

Who should I appoint as my executor?

The person that you appoint should be someone that you trust and someone who is willing and capable to serve. You should only appoint someone who you trust to handle your assets and the responsibility of administering your estate in what will be a difficult time. Further, at least one alternate executor should be named in case your initial choice for executor is unable or unwilling to serve.

Why do I need a will?

 

  • You don’t want you administrator to have to get everything approved by the Probate Court.
    If you do not have a will, the court will choose someone to administer your estate and monitor everything they do. This individual must get the court’s approval for almost every action that they take with respect to the estate. This is process can be expensive and time consuming.
  • Your children may be too young for distributions
    When you die without a will, your assets will be divided according to the intestacy laws and once your children reach age 18, the funds are theirs to use as they wish. They could squander their inheritance, it could be taken by creditors, or divided with an ex-spouse in a divorce.
  • Additionally, your children’s inheritance will be managed by a court appointed trustee until they turn 18. This trustee will have to get approval from the court again and again, and that expense is deducted from your child’s inheritance.
  • Instead, if you create a contingent trust in your will, you are able to appoint a trustee of your choosing and you can make the management of your child’s inheritance much simpler and less expensive.
  • Your assets should go to the people you want to receive them
    If you do not have a valid will, intestacy laws govern. These laws will likely not divide your property the way you would like to divide your property.
  • The court will appoint the guardian of your minor children.
    If you die without a valid will, the court will appoint the guardian of your minor children. This will be done without factoring your wishes in because you haven’t stated them. If you make a recommendation in your will, your recommendation can guide the court to make the best decision.
  • You could give the IRS more than you should
    Intestacy distributions do not incorporate any tax planning. As a result, in large estates more assets than necessary may be diverted from your heirs into the federal and state treasury.

 

What does it mean to die “intestate”?

To die without a will.

What happens if I die without a will?

When someone dies without a will, Texas law will determine who receives the deceased individual’s assets. When there is no will your probate options include: (1) a Small Estate Affidavit; (2) a Determination of Heirship; (3) Court Created Independent Administration; (4) a Dependent Administration; and (5) an Affidavit of Heirship

Circumstances such as the size of the estate and the amount of debt owed by the estate will determine which of the probate options is appropriate.

Is a handwritten Will valid in Texas?

A “holographic will,” is valid if it is written entirely in the handwriting of the deceased individual and signed by them.  These can require more difficulty in probate court because testimony regarding the deceased individual’s handwriting with be necessary before the will can be admitted to probate.  It’s better than nothing, but working with an attorney to properly execute a will with a self-proving affidavit will eliminate unnecessary time and costs.