How Do I Probate a Will If I’ve Been Appointed Executor

Many times people are appointed executor under the terms of a will but have no idea how to start the process of probating the will and opening an administration. This article provides a brief overview of the process of probating a will and the initial steps in administering the estate.

Step 1: Meet With An Attorney

A lot of people don’t understand why an attorney is required to probate a will as they often hope to save a little money by trying to probate the will themselves.  So let me explain.

When a will is admitted to probate for administration, it creates an estate that is a separate legal entity.  The individual serving as executor cannot appear in court pro so because the estate is a separate legal entity.  The executor would be appearing on behalf of the estate which would constitute the unauthorized practice of law.

Still people balk at having to pay attorneys fees.  While I understand no one likes to spend money, the good news is that fees incurred administering the estate can be charged to the estate as a priority claim payable only behind funeral expenses and any family allowances.

So the first step is to meet with an attorney, or several attorneys, until you  find an attorney that you feel comfortable working with.

Step 2: Evaluate the Estate and Need for Probate

Working with your attorney, you will review the known assets and liabilities of the deceased’s estate.  You will also evaluate the family members, beneficiaries, and family dynamics that might impact probating the will.  These factors will all serve to help you and your attorney decide whether the estate requires a full administration or whether the will could be admitted to probate as a Muniment of Title.  You read more about probating a will as a Muniment of Title here.

You will also evaluate whether there is a need for emergency orders.  For instance, you may need an order to access a safe deposit box where the will is located.  Or maybe someone has possession of the will but refuses to turn it over to you the executor, or to present it to the probate court.

You will also evaluate whether there is a homestead or any exempt property that will require special care during the probate process.

Step 3: File an Application to Probate the Will

Your attorney will work with you to prepare an application to probate the will.  The contents of the application will depend upon the type of will, the type of probate proceeding you are pursuing, and the manner in which the will was executed.  You will also need to acquire information on the family, beneficiaries, and any documents necessary to support the application.

If there are ambiguous terms in the will or questions about whether someone qualifies to receive a devise under the will, you may also need to file a Determination of Heirship or Declaratory Judgment action to protect the executor from claims related to distributing property to someone who is not a beneficiary.

Step 4: Attend the Hearing to Admit the Will to Probate

The person appointed executor by the terms of the will must attend a hearing for the purpose of admitting the will to probate and issuing letters testamentary to the executor.  This hearing usually occurs only a few weeks after the application is filed.

Depending upon the manner in which the will was executed, there may or may not be additional witnesses required to attend such as witnesses to the will or witnesses who can testify as to the testator’s handwriting.  If the will is self-proved, the only witness may be the person appointed executor under the will.

The good news is that probate hearings are less formal than traditional court hearings – though it is still a court and you should treat it as such.  Most hearings to admit a will to probate will only take about 5-10 minutes unless there are contested issues.

Step 5: After Admitting the Will to Probate There Are Several Statutory Requirements

The newly appointed executor has several obligations within the first 90 days of admitting the will to probate and the executor’s attorney will advise him or her on meeting those obligations.

For example, the executor is required to publish a notice to creditors and to provide notices to beneficiaries under the will.  The executor will also have to prepare an inventory, appraisement, and list of claims or file an affidavit in lieu of the inventory, if allowed.

Step 6: Administer the Estate

This step also begins immediately after the will is admitted to probate.  The executor is responsible for administering the estate by collecting all of the estate assets, paying or rejecting claims against the estate, handling any claims the estate may have against a third party (such as wrongful death), maintaining and preserving estate property for the benefit of the beneficiaries, and eventually distributing those assets to the devisees in accordance with the terms of the will.

The complexity of the administration will depend on the types of assets in the estate as well as whether the estate is administered independent of oversight form the probate court.  A full discussion of administering an estate is a detailed and lengthy subject that is beyond the scope of this article.

If you were appointed to serve as executor of a will and would like to schedule a consultation, please visit my firm website for more information on scheduling a consultation.

Key Child Custody Terms in Texas

The legal terms used in child custody proceedings are different from the every day terms such as “custody” and “visitation.”  This article provides definitions for some of the more common terms you will likely encounter during a divorce proceeding with children in Texas.

JOINT MANAGING CONSERVATORSHIP. “Joint managing conservatorship” means the sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if the exclusive right to make certain decisions may be awarded to one party.  Texas has a presumption that appointing both parents joint managing conservators is in the best interests of the child(ren).

PARENT. “Parent” means the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father. The term does not include a parent as to whom the parent-child relationship has been terminated except that, for the purpose of establishing, determining the terms of, modifying, or enforcing an order, a reference in this title to a parent includes a person ordered to pay child support or to provide medical support or dental support for a child.

PARENTING COORDINATOR. “Parenting coordinator” means an impartial third party appointed by the court to aid the parties in:

  1. identifying disputed issues;
  2. reducing misunderstandings;
  3. clarifying priorities;
  4. exploring possibilities for problem solving;
  5. developing methods of collaboration in parenting;
  6. understanding parenting plans and reaching agreements about parenting issues to be included in a parenting plan;
  7. complying with the court’s order regarding conservatorship or possession of and access to the child;
  8. implementing parenting plans;
  9. obtaining training regarding problem solving, conflict management, and parenting skills; and
  10. settling disputes regarding parenting issues and reaching a proposed joint resolution or statement of intent regarding those disputes.

PARENTING FACILITATOR. “Parenting facilitator” means an impartial third party appointed by the court to aid the parties in all or some of the same areas as a Parenting Coordinator, but also appointed with the power to monitor the parents’s compliance.

PARENTING PLAN. “Parenting plan” means the provisions of a final court order (which may be based upon an agreement between the parties) that:

  1. set out rights and duties of a parent or a person acting as a parent in relation to the child;
  2. provide for periods of possession of and access to the child, which may be the terms set out in the standard possession order and any amendments to the standard possession order agreed to by the parties or found by the court to be in the best interest of the child;
  3. provide for child support; and
  4. optimize the development of a close and continuing relationship between each parent and the child.

POSSESSORY CONSERVATOR. The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.  The Possessory Conservator has the same Rights of a Parent at All Times and the right to possession of the child(ren) consistent with the guidelines in the Standard Possession Order or an approved agreed parenting plan.

RIGHTS OF A PARENT AT ALL TIMES. Unless limited by court order, a parent appointed as a conservator of a child has at all times the right:

  1. to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
  2. to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
  3. of access to medical, dental, psychological, and educational records of the child;
  4. to consult with a physician, dentist, or psychologist of the child;
  5. to consult with school officials concerning the child’s welfare and educational status, including school activities;
  6. to attend school activities;
  7. to be designated on the child’s records as a person to be notified in case of an emergency;
  8. to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
  9. to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.

RIGHTS AND DUTIES DURING PERIOD OF POSSESSION. Unless limited by court order, a parent appointed as a conservator of a child has the following rights and duties during the period that the parent has possession of the child:

  1. the duty of care, control, protection, and reasonable discipline of the child;
  2. the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
  3. the right to consent for the child to medical and dental care not involving an invasive procedure; and
  4. the right to direct the moral and religious training of the child.

RIGHT TO DESIGNATE PRIMARY RESIDENCE.  Even in cases where parents are appointed joint managing conservators, the court is required by law to appoint one of them the exclusive right to determine the primary residence of the child. The court may place restrictions on the geographic area in which the parent may designate the child reside.

SOLE MANAGING CONSERVATOR. Unless limited by court order, a parent appointed as sole managing conservator of a child has the following exclusive rights:

  1. the right to designate the primary residence of the child;
  2. the right to consent to medical, dental, and surgical treatment involving invasive procedures;
  3. the right to consent to psychiatric and psychological treatment;
  4. the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
  5. the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
  6. the right to consent to marriage and to enlistment in the armed forces of the United States;
  7. the right to make decisions concerning the child’s education;
  8. the right to the services and earnings of the child; and
  9. except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government.

STANDARD POSSESSION ORDER. Texas law sets forth a standard possession order that is presumed to be in the child(ren)’s best interests.  The order varies based on the geographic distance between the parents’ residences.  You can read more about the Standard Possession Order here.

UCCJEA.  The Uniform Child Custody Jurisdiction and Enforcement Act provides for continuity in initiating, enforcing, or modifying child custody decisions by providing rules for deciding the proper forum for child custody issues when a child and/or the child’s parents have moved to different states.

Estate Planning 101

Most people hear the term “estate planning” and either don’t know what it involves or don’t fully understand what an estate plan accomplishes.  This article is an Estate Planning 101 to help explain what estate planning is all about, including what an estate is, the goals of estate planning, what an estate plan does, and what documents you might expect to see in an estate plan.

What is Estate Planning?

Estate planning is the process of thinking about and addressing your wishes with regard to two events: your unexpected disability during life as well as your testamentary plans for the disposition of your estate after your death.

What is an Estate?

The short answer is that an estate consists of every piece of property you own.

Examples of assets commonly found in an estate includes your house, any other real estate you may own, your cars, your personal effects such as jewelry and clothes.  It also includes your bank accounts, brokerage accounts, IRAs, 401k’s, other retirement accounts, life insurance, and your business interests.

One asset class often overlooked are your digital assets.  For example, Apple ID’s , Facebook accounts, as well as files and documents stored online are all part of your estate.

In probate, after you pass away, your estate may have liabilities in the form of unpaid debts and may have claims against third parties that arose during or at the end of your life (for example, an asbestos, medical malpractice, or wrongful death claim).

What are the Goals of Estate Planning?

Every person’s estate planning goals differ because everyone’s life is different.  Your estate plan will develop based on your planning goals that are specific to your life, your family, your assets, and your wishes.

That being said, below are a list of some of the common goals clients have when constructing their estate plan:

  • transferring assets at the death to the beneficiaries they wish to receive them;
  • planning for incapacity or disability;
  • providing instructions for their end-of-life care wishes;
  • charitable giving;
  • protecting assets from creditors; and
  • protecting assets from their beneficiaries’ creditors.

What Does an Estate Plan Do?

A properly constructed estate plan will usually accomplish the following objectives:

  • identify the individual recipients of your assets after your death and allocate your assets to them according to your wishes;
  • make sure that the transfer of your assets is accomplished as efficiently as possible;
  • minimize the costs imposed on your estate through taxes and the costs of probate;
  • make sure your non-probate asset dispositions are consistent with your probate asset dispositions;
  • make your end-of-life medical care wishes known;
  • address who will make medical decisions for you in the event you become incapacitated or disabled and are unable to make those decisions yourself;
  • address who will manage your assets and pay your bills in the event you become incapacitated or disabled;
  • provide for the designation of whom you wish and whom you do not wish to serve as your guardian should the need arise; and
  • set forth detailed instructions for how you wish your remains to be handled, whether by cremation or funeral.

Other objectives an estate plan might accomplish include the following:

  • planning for the care of minor children in the event both parents pass away;
  • planning for the care of a child with special needs; and
  • planning for the care of a family pet;

What Type of Documents Should You Expect to See in Your Estate Plan?

Basic estate plans will include the following documents:

  • a last will and testament;
  • an advanced directive (also known as a living will);
  • a power of attorney;
  • a medical power of attorney;
  • a designation of guardian; and
  • instructions on disposition of remains.

More complex estates might also include additional documents such as inter vivos or testamentary trusts as well as business organization documents.

You can read more about each of these documents and what they do by visiting this link:  Key Estate Planning Documents.

If you would like to contact my firm to schedule a consultation to discuss your estate plan, then please visit the firm’s contact page by clicking here.

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