frequently asked questions

What is probate?

Probate is the legal process of wrapping up an estate. It is getting the court to authorize someone to serve as the executor, paying any remaining bills,   liquidating the estate, and distributing assets or proceeds to beneficiaries. If there is a will, it’s getting the court to acknowledge that the will is valid, to acknowledge the executor named in the will, and to acknowledge the powers of that executor for the will. Liquidation of the estate would include paying any bills of the decedent, collecting any money that’s owed to the decedent, and then following the instructions for dispersal of assets that the decedent had in their will.

Without a will, probate would be asking the court to determine who the heirs are. If there is no will, there are no designated beneficiaries. If the court doesn’t know who these heirs are, then the Texas Estates Code defines who the heirs are. The court would have to have a determination whereby the applicant would define who they think the heirs are. The court would appoint a third party attorney, called an attorney ad litem, to investigate the family and the affairs of the family to determine and report back to the court who those heirs are.

Then, there’d be a second proceeding to appoint someone to be the administrator of the estate. If all the heirs can agree that the administrator should serve independently, then the court can authorize that administrator to do so. If any heir disagrees, the court would order a dependent administration and the court would need to approve anything that the administrator does before any property is sold, disposed of, or any bills are paid. The court would have oversight on each step, which adds time and expense to the probate process.

What Type Of Assistance Do You Provide To Clients Going Through The Probate Process?

We generally have an initial meeting to discuss the affairs of the decedent: what assets they have, what liabilities they have, and whether they had a will or not. Once we gather the initial information, we would prepare the probate pleadings and file them with the court. These would be the applications to probate the estate, whether they are to probate the will or to determine the heirs and appoint an administrator. We would answer questions for whoever our client is on what’s going to happen in the process. When the case is set for the court, we would go with them and present the evidence to the court on their behalf and introduce any testimony necessary for the court to make a decision. We would also coordinate the preparation and signing of the necessary paperwork as well as notary service when required.

If there is no will, then we would coordinate getting the applicant’s signature and submitting the proper paperwork to get the heirship determined and work with the attorney ad litem to determine those heirs. Whether they get letters testamentary or letters administration, we help them with filing any necessary notices to creditors, publishing the notice to unknown creditors in the newspaper, and sending the required notices to beneficiaries or heirs. Then, we help with any winding up that they need help with, including communicating with creditors or beneficiaries and the transfer, or re-titling of any property.

Is Probate Necessary?

Sometimes probate is necessary, sometimes it is not. Occasionally, we will have an estate where planning has been done so that there is no probate necessary. If there is no real estate or if the real estate has transfer on death deed, or enhanced life estate deed (aka Lady Bird Deed) or in a trust, then the real estate would not need to go through probate. If their financial accounts have beneficiary designations set up for payable on death or with a right of survivorship, then it would not need to go through probate. Survivorship can pass outside of probate. If someone has done some planning, they may not need probate.

Factors That Set The Stage For Probate To Occur

Death is required before probate can be initiated. The purpose of probate is to have someone placed in charge of the decedent’s estate (Administrator or Executor), pay creditors of the decedent, collect money owed to the decedent, and disburse or re-title property in the decedent’s estate to the heirs or beneficiaries. Sometimes, people understand the necessity for probate and, right after the passing of the decedent, they will come to see us about probate and get the estate settled. Other times, it’s not until someone attempts to transfer property or gain access to an account and realize that they can’t.

Options For Avoiding Probate

The first way to avoid probate would be to not own any probate assets. Probate assets typically are real estate, financial accounts, and vehicles. If everything either has a right of survivorship, a payable on death designation is in a trust, or has a transfer on death deed, there are ways to avoid probate. Those are things we would certainly discuss in the initial meeting and during the estate planning process.

For more information on Probate In The State Of Texas, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (830) 625-9300 today.