Category Archives: Probate

How to Keep Your Family Together During the Probate Process

Financial interests and dealing with the emotional loss of a loved one can combine to create tension, dispute, and destruction in family relationships.  Family members fight.  Siblings feel hurt by the terms of a parent’s will.  Someone feels a strong need for a sentimental personal effect.  Family members feel pressure from their own financial problems and look to their inheritance as a solution.

Probate can be lengthy – in many cases it may last well over a year.  Complex cases may last even longer.  Managing family dynamics during this time period can be difficult.

This article is designed to provide some insight for executors and other family members on how they can avoid and diffuse these issues during the probate process.

Set Expectations Early

This should begin even before you have the will admitted to probate and someone is appointed executor.  Speak to family members and beneficiaries.  They often have expectations for immediate access to money or property.  They may have expectations that are contrary to the terms of the decedent’s will.  Explain the probate process and timeline so that those expectations are realistically tied to the time needed to settle the estate.

Partial early distributions is an area where a dispute often arises.  Expectations should be set regarding whether there will be any early distributions.  It is quite common for beneficiaries who are not in a stable financial situation to request loans or advances.  How will you handle those requests? How will you respond when other beneficiaries find out? Set the expectations – and set them for everyone.

You should also set expectations regarding communication and the exchange of information during the probate process.  How will you communicate? How often? Simple estates may not require frequent updates while more complex matters may dictate frequent, even weekly, updates.

Communicate Frequently

The human mind has an amazing ability to develop conspiracy theories when left with little information and the time to do so.  You should communicate with beneficiaries and family members often.  The more complete and accurate the information they have is, the less likely their mind will wander and fill in any gaps with suspicion.

You set the expectations for the probate process and timeline early on.  You should communicate frequently with other family members about where you are in the process.  If there are any issues that may cause a problem or delay, communicate them as soon as you can.  If the expectations for the timeline change, then update them.

Some family members may have previously had access to estate property that they will not have access to during the probate process.  The executor may need to change the locks, secure the property, or otherwise take possession of assets until the probate process is complete.  Communicate that fact early on so that it is not a surprise to some accustomed to having use or access to the property.

Some family members may have relied upon assistance from the decedent – financial or otherwise.  You should communicate with those family members and determine whether the estate can continue that support and how it might go about doing so.  You should also make sure that other beneficiaries or family members are aware of any arrangements you make so they are not surprised to find out about any support the estate provides.

You should discuss how decisions will be made as well as who is responsible for making which decisions.  The executor is ultimately responsible for all decisions regarding the estate, however, there may be room for input from other family members.  Allowing family members to participate in the decision making process so they have an opportunity to be heard and feel like they have a voice can go a long way in avoiding conflict.

Frequent communication will not only help prevent beneficiaries and family members from negative speculation but it will also allow you to anticipate potential conflict so that you can act to de-escalate it quickly.

Be Aware

You should be aware of the expectations of beneficiaries and family members.  You should also be aware of the family dynamics and how that might play into any disputes that might arise during the probate process.

For example:

  • Is someone expecting to inherit under the will but the decedent left them little or nothing?
  • Was someone promised a personal item but it is not written in the will?
  • Is a family member in a financial bind and likely to request an advance or loan?
  • Are tensions already high between certain beneficiaries from some long simmering dispute?  Is that likely to trigger a fight during probate?
  • Are there established roles or pecking orders within the family that might affect their interaction during the probate process?
  • Are discussions best handled as a group or one on one?
  • Are there any items of particular sentimental value that might “disappear” if you don’t take immediate action?
  • Does a beneficiary or family member have a sentimental attachment to a particular personal effect or household item?

You should also be aware of your power and authority as executor.  What does the will say about how to handle disputes among beneficiaries?  How much discretion were you afforded in distributing personal property under the will?  What factors did the decedent instruct you to consider when making decisions regarding distributions?

Understanding the amount of discretion you are allowed as well as what factors you must consider when making decisions regarding distributions can provide you with a foundation to explain your decisions to family members that might otherwise question those decisions.  Providing a sound, logical, explanation for a decision can help prevent any argument from escalating.

Use Your Advisers Wisely

The professionals advising you during the probate process are there to provide objective advice that is unfettered by the emotion that arises between squabbling family members.  Use this to avoid and diffuse potential conflict.

Do you know there is going to be a delay coming up?  Family members might view the news coming directly from you with suspicion or a lack of understanding.  Having the attorney handling the probate inform the family members and explain the reasons for the delay might be more acceptable to other family members.

Tax issues preventing a closure of the estate?  Have the CPA talk to your family members to explain why there is a delay and the importance of handling the matter appropriately.

These professionals act as an objective authority to explain the basis of the decision that might otherwise cause conflict.  You can and should use them to shield yourself from taking the blame from other family members.

In Conclusion

The stress of dealing with loss of a loved one combined with the desire and expectation of new wealth from settling the estate can make family members act in ways they might nor ordinarily act.  A little thought, a little planning, and a lot of communication can go a long way towards ensuring your family can get through the probate process without irreparably damaging your familial relationships.

What Does It Mean to Probate a Will as a Muniment of Title?

A Muniment of Title is an alternative method of probating a will that is unique to Texas.  Probating a will as a Muniment of Title is more efficient than a full probate appointing an independent executor which often results in significantly lower costs.  Like most things, there are advantages and disadvantages to the Muniment of Title option which I discuss further below.  You should consult with an attorney to determine whether probating a will as a Muniment of Title is appropriate for your situation.

What are the requirements to probate a will as a Muniment of Title?

The requirements to probate a will as a Muniment of Title closely follow those required to probate any will, with two key additions:

  1. The estate cannot have any debts other than those secured by liens on real property; and
  2. There can be no other need for administration of the estate.

What are the advantages of probating a will as a Muniment of Title?

There are several advantages to probating the will as a Muniment of Title – with the biggest being money.  Because of the streamlined process, the costs involved in probating a will as a Muniment of Title are significantly less than a full probate.  There is only one court hearing and no need to provide notice to beneficiaries, creditors, or to file an inventory, appraisement and list of claims.

Another benefit is that there is no executor appointed by the court when probating the will as a Muniment of Title.  This means no one is subject to the duties, responsibilities, and potential liabilities of serving as executor of the estate.  This also means there is no additional proof requirements for someone to qualify as executor of the estate.

What are the disadvantages of probating a will as a Muniment of Title?

While there is some advantage to not appointing an executor as in a full probate, this is also a disadvantage.  No executor means that there is no one individual responsible for overseeing the collection of assets and distribution to beneficiaries.  That also means that should a need to administer the estate come up after the will is admitted to probate as a Muniment of Title, then the estate will have to start over with a full probate to have a court appoint an executor which results in an increase in costs.

Another important consideration is that probating a will as a Muniment of Title may not be effective to transfer all property held in the testator’s name.  I discuss this further below.

What type of property can you transfer using the Muniment of Title process?

In theory, any property is subject to transfer by probating the will as a Muniment of Title. The Texas Estates Code states that:

“A person who is entitled to property under the provisions of a will admitted to probate as a muniment of title is entitled to deal with and treat the property in the same manner as if the record of title to the property was vested in the person’s name.”

Unfortunately, this isn’t true in the real world.  Probating a will as a Muniment of Title has proven most effective for transferring title to real property and to automobiles registered in Texas.

A Muniment of Title may not be effective for transferring other types of property.  For example, bank accounts and brokerage accounts without POD designations may not accept an order under a Muniment of Title proceeding.  Life insurance without a beneficiary designation will often not accept an order probating a will as a Muniment of Title to transfer property.

If the deceased owned property in another state, then probating a will as a Muniment of Title in Texas may not allow you to take advantage of the ancillary probate options available in the other state.

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.