Category Archives: Probate

Am I Required to Probate a Will in Texas?

Am I Required to Probate a Will in Texas?

 

The short answer is no – there is generally no legal requirement to probate a will in the State of Texas.  Having said that – there is a legal requirement to file a will with the county clerk upon learning of the passing of an individual.  A court may also order someone in possession of a person’s will to turn that will over to the court or designated executor and failing to obey such a court order could lead to a contempt of court charge. I should also note that in certain circumstances there may be a contractual relationship between beneficiaries that mandates probating a will as well.

Why You Might Not Want to Probate a Will

Everyone has heard horror stories of beneficiaries hiding wills when they are unhappy with the terms or disgruntled spouses doing the same.  There are always bad actors but that is a subject for a different post.  This article is not about such bad actors and their reasons for not probating a will.  The fact is, there are a variety of very legitimate reasons why you may wish to avoid probating a will.

One reason might be privacy – probating a will in court is a public matter meaning that most filings in the case as well as the contents of the will become public information.  This includes the inventory, appraisement, and list of claims.  Some families or beneficiaries might prefer to keep such estate matters private.

Another reason you may not wish to probate a will is a concern over costs.  Perhaps the value of the estate compared to the costs of the probate process make probate prohibitively expensive.

Another reason you might not probate a will is because of the nature of the estate.  Perhaps the estate consists solely of personal property and the beneficiaries are in agreement regarding the distribution of the estate property.

Things to Consider Before You Decide Not to Probate a Will

A primary consideration is whether there exists a need to probate the will that cannot be satisfied outside of the probate process.  For example, transferring title to real property will generally require some form of probate if held in the deceased’s name.  Having said that – there may be cheaper alternatives to a full probate available  (such as probating the will as a muniment of title) depending upon the nature of the estate assets and claims against the estate.

You must also consider who has possession of the deceased’s assets.  Third parties in possession of the deceased’s assets might require probating a will to establish the authority of an individual to receive those funds.  For example, if the deceased did not have a POD designation on their account then funds held at a bank might require the appointment of an executor through the probate process before a bank will release those funds.

Another important consideration is providing for and appropriately documenting the distribution of the deceased’s assets if you do not probate his or her will.  Even if you and the other beneficiaries agree at this point in time – you don’t want to risk someone changing their mind or deciding they want more from the estate at a later date.  At that point you might end up in court in a contested situation that will cost more to settle and you will have to handle it without the benefit of the full estate to fund the proceedings.  A family settlement agreement is often useful in these types of situations to document the beneficiaries agreement not to probate the will and on the distribution of estate assets.

If you recently had a loved one pass away and are considering whether it is appropriate to probate his or her will, you can contact my office to schedule a free consultation to discuss your options.

 

Key Probate Terms to Understand When talking to Your Attorney

Key Probate Terms to Understand When talking to Your Attorney

 

I put together this list of terms with easy to understand definitions (I hope) and examples for my probate clients so that they could familiarize themselves with many of the probate terms they will hear during the probate process.  Then I thought, why not share it with other folks trying to understand how the probate process works?

Note: It is possible that some terms, such as “child” could actually have a different definition if the deceased defined the term in his or her will.

Administration or Administration of the Estate.  This refers to the probate process as a whole regardless of whether the deceased passed away with or without a will.  It includes both dependent and independent administrations.  In general, administration of the estate involves the following steps:  opening the administration and appointing a personal representative; collecting the assets of the estate; paying any estate taxes; identifying, classifying, and settling claims against the estate; distributing the estate assets to appropriate heirs or devisees; and then closing the estate.

Administrator. An “administrator” is the individual appointed by a probate court to administer the estate of an individual who died without a will.

Child. The term “child” includes natural born children as well as adopted children.  However, it generally does not include a child of a deceased male if that male was not the child’s presumed father.  A presumption of fatherhood is established by law with specific time requirements around the birth of the child and a marriage between the presumed father and mother of the child.

Claims.  The term “claims” includes a number of items that may arise before or after the deceased individual’s death.  For example, liabilities of the deceased, taxes, and estate taxes are claims.  So are the expenses incurred in the administration of the deceased’s estate.

Decedent.  “Decedent” is the legal term for the person who passed away.

Dependent Administration.  A “dependent administration” is an administration conducted under close court supervision.  Dependent administrations are usually more expensive because the personal representative’s authority to take action is limited and usually requires prior approval from the probate court.

Devise.  “Devise” refers to a phrase in a will setting forth the distribution of property.

Devisee. “Devisee” refers to one who receives a devise under a will.

Estate Tax Returns.  “Estate Tax Returns” is often used loosely to refer to a number of tax reports that must or may be filed during the probate process.   There are two types of tax returns – income tax returns and actual estate tax returns.  For example, the last income tax return for the deceased for the year in which he or she died must be filed by the personal representative.   The personal representative will also be required to file an  income tax return for the estate itself.  Certain estates may be required to file an estate tax return because the size of the estate necessitates payment of estate taxes.   In certain cases, the personal representative may choose to file an estate tax return even though the size of the estate does not require payment of estate taxes in order to support the “porting” of the deceased’s estate tax exemption to his or her surviving spouse.   Some states may also require an estate tax return if the deceased owned property in a state that required estate tax returns.

Executor. The “executor” is the person designated by a will to administer the estate of an individual who died with a will.  The executor’s appointment must be made by the probate court.

Exempt Property.  “Exempt Property” is certain property defined by law to automatically vest in specific individuals in priority to any other laws of inheritance or devises set forth in a will.  Examples include a homestead exemption for a surviving spouse, minor children or adult unmarried children residing with the family as well as exempt personal property set forth in the property code.

Exempt Property Allowance.  When the deceased’s estate does not contain a homestead or exempt personal property, the surviving spouse and children may receive an allowance in lieu of the exempt property.

Family Allowance.  If a surviving spouse (with or without children) does not possess sufficient property to provide for their own support, then they are entitled to a “family allowance” from the estate for a period of one year from the date of the deceased’s death to be paid as a priority out of the estate’s assets.

Heir. An “heir” is someone who is entitled to receive a deceased individual’s property when that individual dies without a will.

Holographic Will.  A “holographic will” is a document setting forth the disposition of a deceased individual’s estate that is written entirely in the deceased individual’s handwriting.

Independent Administration.  An “independent administration” is an administration conducted with minimal court supervision of the personal representative.  There are specific requirements for an estate to be administered independent of the court but usually results in a less costly probate process because the personal representative may take most actions without prior approval from the probate court.

Intestate. “Intestate” is often used in the phrase, “died intestate.”  This simply means that the individual passed away without a will.

Legacy.  A “legacy” is a gift or devise of property made in a will.

Legatee.  A “legatee” is a person entitled to receive a legacy under a will.

Letters of Administration.  This is the document issued by the probate court to the administrator that the administrator provides to third parties in order to show his or her authority to act as the court appointed personal representative of the deceased individual’s estate.  These letters serve as proof of the administrator’s authority to take possession of the deceased individual’s property as personal representative of the estate.

Letters Testamentary.  This is the document issued by the probate court to the executor that the executor provides to third parties in order to show his or her authority to act as the court appointed personal representative of the deceased individual’s estate.  These letters serve as proof of the executor’s authority to take possession of the deceased individual’s property as personal representative of the estate.

Non-probate Assets.  “Non-probate assets” refers to property that does not pass or transfer title through the probate process.  Most property can, through proper estate planning, be made into a non-probate asset.  Examples of non-probate assets include the following: bank accounts with payable on death designations, retirement accounts with beneficiary designations, and real property if title is held with a right of survivorship.  Beginning in 2016, Texas enacted a law that allows title to automobiles to also be held with a right of survivorship that allows title to the automobile to transfer outside of the probate process.

Personal Property.  “Personal property” refers to every type of tangible or intangible property that is not real estate.  This could include money, clothing, cars, promissory notes, a lease agreement, or anything else that is movable and has value.

Personal Representative.  “Personal Representative” is a term used to refer to both executors and administrators.  In the case of an estate where the deceased had a will, the term refers to the executor.  In the case of an estate where the deceased did not have a will, the term refers to the administrator.

Probate Assets.  “Probate assets” refers to property that must pass through the probate process in order to transfer title from the deceased individual to an heir or devisee.

Real Property.  “Real property” means property that is real estate or land.

Self-Proved Affidavit.  A “self-proved affidavit” is an affidavit executed by the deceased and two witnesses that is used to prove the validity of the will when admitting the deceased individual’s will to probate.