If you are an Executor appointed in somebody’s Will, you will likely need to take a few steps to handle the estate of the person who is deceased. Below are some of the basic duties of an Executor but generally, a probate attorney will help you with most of these tasks:
- Locate the Will and file it with an Application to Probate the Will and a Request for Letters Testamentary. Request a probate hearing date.
- Attend the probate hearing where you will sign a Proof of Death affidavit attesting to the facts of the decedent’s life, take and sign an Oath of Executor swearing to fulfill the terms of the Will, and order Letters Testamentary which will give you the legal authority to act on behalf of the estate of the decedent.
- Make a list of the decedent’s assets and liabilities; file an Inventory, Appraisement and List of Claims with the Court.
- Publish a Notice to Creditors in the local newspaper for any unknown creditors and send statutory Notices to Creditors for any known creditors.
- Determine whether creditor’s claims should be paid or rejected and take action accordingly.
- Send statutory Notices to Beneficiaries of the Will.
- File a final tax return and if necessary, an estate tax return.
- Once all creditors have been paid, the remaining assets of the estate are distributed according to the instructions in the Will. However, depending on your confidence in knowing all creditors have been paid, you may want to hold some funds back and distribute only after the statute of limitations have run for a creditor to make a claim and collect on it.
This is only a very basic list of tasks for an Executor for a very basic estate. There are generally other tasks as well. It is recommended, and required by most courts, that you obtain legal counsel to help with the probate process and you in your role as the Executor. The court costs and legal fees are paid from the estate so the Executor is not personally responsible for those expenses. If you need help with probate or your role as Executor, call the Law Office of Roy Neal Linnartz, PLLC for an appointment to discuss. (830) 625-9300
While generally speaking, probate is typically not difficult or expensive if you have a well-designed estate plan. However, if you do not have a complex estate, you may desire to plan for probate avoidance. Transfer on Death Deeds (TODDs) can be used to pass real property outside of the probate process and you can read more here: https://newbraunfelslawoffice.com/what-is-a-transfer-on-death-deed-and-how-can-it-benefit-me/. Enhanced Life Estate Deeds (aka Ladybird Deeds) can also be used to pass real property outside of the probate process.
Bank accounts, retirement accounts, investment accounts, and other accounts with financial institutions can be set up to pass without the necessity of probate. Accounts which are owned by more than one person can be set up to be owned by Joint Tenants with Rights of Survivorship (JTWRS). If one of the account owners dies, the surviving account owner(s) automatically owns the balance of the account. Depending on the type of account, the terminology may differ but the result is the same in naming a Beneficiary, Transfer on Death (TOD), or Payable on Death (POD) designee. While the designee is not an owner of the account, when the account owner passes, the balance of the account passes to the designee.
Vehicles can passed to a beneficiary by using the Beneficiary Designation for a Motor Vehicle form (VTR-121) from the Texas Department of Motor Vehicles. By completing this form, you can designate a beneficiary who will receive your vehicle if you die and the vehicle will not have to go through probate.
The above is a very basic description of some methods of probate avoidance. Use of these methods without planning can lead to unintended consequences so you should discuss with your financial planner as well as an estate planning attorney. If you would like assistance with planning for probate avoidance, call the Law Office of Roy Neal Linnartz, PLLC at 830-625-9300.
What is the HEMS Standard?
HEMS is an acronym for Health, Education, Maintenance, and Support. The HEMS standard is often used in trusts to give the trustee broad direction in determining how to provide funds to the beneficiary(ies). Health covers the healthcare needs of the beneficiary. Education covers tuition, room and board, and other relevant expenses of getting an education. Maintenance and Support are to ensure the beneficiary receives the same standard of living as they had been accustomed to, which can vary depending on the situation. For some people, Maintenance and Support may be basic such as food, clothing, and shelter. Maintenance and Support may be travel, vacation, and other luxuries for others. More specific instructions can be left for the trustee but care should be taken not to tie the hands of the trustee. Good intentions today can have unintended consequences tomorrow. Having a Trustee who knows the beneficiary intimately, such as a friend or family member, who can apply the HEMS standard can oftentimes be the best scenario. The trustee has broad latitude to make decisions for funding the beneficiary based on the HEMS standard and the knowledge of their family and lifestyle.
If you would like help with your estate planning, call the Law Office of Roy Neal Linnartz, PLLC at 830-625-9300.
How often should you review your Will and other estate planning documents?
If there is a death, birth, adoption, divorce, or other life-changing events in your life or the life of a beneficiary, executor, trustee, guardian, or power of attorney, it is worthwhile to review your estate planning documents to see if any changes need to be made. Also, if you have a Living Trust, it is worthwhile to review your trust documents annually to see if anything needs to be updated and to make sure all assets are properly titled.
Over time, changes in relationships, health, and who is still living can affect whether they can or would serve in the role designated. With certain changes, you may want to update or make changes to certain roles. This is especially true when designating spouses of a child, spouses of a friend, or spouses of a family member.
An attorney who works in estate planning can help advise you of recommended changes and help you make those changes to your estate plan. If you would like to review your estate plan with an attorney, call the Law Office of Roy Neal Linnartz, PLLC at 830-625-9300.
Why you need a Will, a Scenario:
- Decedent died intestate (without a Will). Decedent has 3 children from a prior marriage. Decedent remarried and had been married to his current wife for 20 years when he passed. Decedent had a farm he inherited (separate property), a homestead house purchased with his current spouse (community property), and $100,000 cash (community property).
- The 3 children get the farm but the spouse gets a life estate in 1/3 of the farm.
- Spouse gets 1/2 of the Homestead house and each child gets 1/6 of the house.
- *Spouse gets Constitutional right to occupy homestead during her lifetime.
- Spouse gets $50,000 of the cash and each child gets $16,666.66 of the cash.
The surviving spouse thought she was getting everything from her deceased husband’s estate and was shocked when told she did not get everything.
This is an oversimplified example of what can happen if you don’t have a Will. If you would like to schedule an appointment to discuss getting a Will or updating a Will or other estate planning documents, please contact the Law Office of Roy Neal Linnartz, PLLC at (830) 625-9300.
Can I use an Affidavits of Heirship to sell real estate of which I am an heir when the Decedent didn’t have a Will?
Possibly. Affidavits of Heirship (“Affidavits”) are not like a deed that conveys title but rather is evidence of who the heirs are to complete a chain of title so the heirs can sell the property. The Affidavits are evidence for a court proceeding on an heirship once the Affidavits have been recorded in the County Records for five years. However, many title companies will accept Affidavits that have been recorded less than five years.
The Affiant, person making the Affidavit, cannot be an interested person (someone who is an heir or has an interest in the estate) and must swear to the following facts (there must be two Affiants):
- That Affiant knew the Decedent and dates which they knew Decedent
- The date and location of the Decedent’s death
- Address where Decedent resided
- Decedent’s marital and family history and identification of heirs
- That Decedent died without a Will
- That Decedent has no debts and owes no taxes or a list of unpaid debts and taxes
- That there is no administration of the estate
- A description of the property
Affidavits of Heirship are not appropriate in every scenario but do serve a purpose in certain circumstances. If you have issues with selling real estate and would like to explore whether an Affidavit of Heirship could benefit you, please contact the Law Office of Roy Neal Linnartz, PLLC at (830) 625-9300.
