What Is Probate In Texas?
Probate is a legal process by which the deceased’s estate is administered by the court after they die.
What Assistance Do You Provide To Clients Going Through Probate?
I take a full service approach to client representation throughout the probate process. Many times, the client has lost a loved one and is still grieving their loss while trying to manage their affairs as well. It can feel overwhelming. I assure them that we will get through this emotional time together, and that they are in good hands because I will be by their side throughout the entire process.
Is There More Than One Type Of Probate In Texas?
Testate and intestate probate proceedings are the two most common. Testate means the deceased died with a valid will. Intestate means the deceased died without a will. The probate process is much simpler when the deceased died with a valid will. If the deceased died intestate, the laws of the State of Texas arbitrarily determine the disposition of their property at death. Your loved ones will be grateful that you took the time to prepare a will that sets forth your wishes with respect to all your possessions, and designates a person you trust to manage the probate process.
What Type Of Trust Can I Use To Avoid Probate?
Creating a trust does not guarantee that you will avoid probate. However, the following common types of trust can be very valuable when planned properly with your San Antonio probate attorney:
- Revocable Living Trust: A revocable living trust is commonly created to avoid the probate process. It makes sure that your assets go to the intended recipients without a lengthy probate process, after your death. Many times, a revocable living trust contains sub-trusts within. This is a great place to start when discussing a trust with your probate attorney in Texas.
- Grantor Trust: A grantor trust is a trust where the grantor has created the trust to transfer property to a person or a business entity in order to avoid probate, taxes, or other complications.
- Irrevocable Living Trust: An irrevocable living trust is a contract created with the assistance of your San Antonio, Texas probate attorney to transfer assets to an individual that the trust creator claims is not competent enough to manage their own assets. The irrevocable aspect of the trust can be limited to a specific portion of the trust; other parts can be changed.
- Testamentary Trust: A testamentary trust is created by the explicit instructions inside of the will of a deceased person. This is a type of irrevocable trust used to leave assets to a certain beneficiary at a specified time, after the grantor’s death. This type of trust does not avoid probate and actually needs probate to take effect.
- Minor’s Trust: A minor’s trust passes assets to a minor child and plans for the management of those assets until the child reaches a specified age when they are given full control of those assets. This type of trust can avoid guardianship proceedings. A minor trust holds all the assets secure for the minor and the grantor receives no type of income from the trust’s assets. It is very important to follow your probate attorney’s guidance when planning for your minor children in San Antonio, TX.
- Beneficiary’s Trust/Separate Share Trust/Spendthrift Trust: These trusts allow specified trustees to manage the assets put into a trust for the welfare of the beneficiary. A separate share trust allows parents to establish a trust that accommodates the unique needs of each of their children. A spendthrift trust protects the trust’s assets from being claimed by any creditors and permits the assets in the trust to be managed by an independent trustee.
- Blind Trust: A blind trust allows a trustee to handle the assets in the trust without the knowledge or permission of the beneficiaries. In situations where the beneficiary needs to be kept unaware of the contents of the trust in to avoid conflicts, a blind trust is useful. The advice of a trusted probate attorney is necessary if you find yourself considering a blind trust in San Antonio.
- Discretionary Trust: In a discretionary trust, the beneficiaries and assets are not fixed. They will be determined by specific criteria and administered at the discretion of the trustees.
What Factors Set The Stage For Probate To Occur?
Death is most often the key factor. The probate courts also oversee guardianship proceedings where a guardian is appointed to manage the affairs of an individual who has been determined to lack the mental or physical capacity to manage their own affairs.
Who Are The Main Participants Or Parties In The Probate Process?
The most significant parties in the probate process are the executor and the beneficiaries. The executor is identified in the will as a person trusted by the deceased to manage his or her affairs after their death. Most often the executor is a spouse or child of the deceased. The beneficiaries are identified in the will as the parties who shall receive the deceased’s possessions and assets after the death occurs. The executor is often a beneficiary as well.
What Actually Occurs During The Probate Process In Texas?
- Client meeting at my office. This meeting is often with the executor named in the will and other family members. We review the will together to determine the deceased‘s wishes set forth in the will and discuss what to expect in the probate process.
- File an Application with the court to admit the will to probate and authorize the issuance of Letters Testamentary. A Letter Testamentary is an official court document authorizing the executor to act on behalf of the deceased’s estate.
- Preparation by my office of a Proof of Death and Other Facts, an Executor’s Oath, and Order admitting the will to probate and authorizing the issuance of Letters Testamentary.
- Approximately two weeks after the Application is filed: a hearing attended by the executor and me at the probate court to formally admit the will to probate, formally appoint the executor and authorize the issuance of Letters Testamentary.
At the hearing, the executor signs the Proof of Death and Other Facts, and the Executor’s Oath, in front of a court clerk. The judge signs the Order admitting the will to probate, appointing the executor, and authorizing the issuance of Letters Testamentary. Multiple Letters Testamentary are generated by the court clerk for the executor’s use and benefit.
After the will is admitted to probate, the following occurs:
- Preparation by my office of a Notice to Creditors and Notice to Beneficiaries.
- If necessary, negotiation by my office with the deceased’s creditors to settle any debts.
- Preparation by my office of an Inventory of the deceased’s probate assets to file with the court and an Order for the court to approve the Inventory.
- Preparation by my office of documents such as an Executor’s Deed to distribute the assets of the deceased to the beneficiaries.
How Long Is The Probate Process In Texas?
The probate process typically takes 3-6 months to complete, depending on the size of the estate and whether claims that need to be settled are filed against the estate by the deceased’s creditors.
What Are Some Of The More Common Costs Of The Probate Process?
County probate clerk filing fees and county sheriff fees to post notice of the filing are approximately $300, depending on the county. Publishing a required Notice to Creditors is approximately $75, depending on the publication. I generally estimate $2,500 for an uncontested probate proceeding, including costs and attorney’s fees.
Can A Person Realistically Navigate The Probate Process Without An Attorney?
In the probate process, a person is not appearing ‘pro se,’ representing himself or herself. You are present in the probate process as someone who is interested in the deceased’s estate who is seeking to be appointed by the court as the executor or administrator. I have never personally witnessed a person seeking to be appointed as the executor of an estate without attorney representation. Attorney representation does not have to be expensive. My office is willing to work with you on payment options.
What Are The Ideal Outcomes, In General, For The Probate Process?
Prompt distribution of assets and settlement of any creditor claims against the estate. If the deceased had substantial health care expenses in the final months of life, often health care provider’s will file claims against the estate to insure payment. I work with health care provider’s and the deceased’s health care insurance (often Medicare) to minimize or reduce any and all payments from the estate.
What Are The Top Misconceptions People Have With Respect To The Probate Process?
The most common misconception is that only people with significant financial means need a will. In Texas, when you die with a will in place the probate process can be very simple and inexpensive.
Must All Assets And Property Go Through Probate When Someone Dies?
No, assets such as banks accounts, life insurance proceeds, 401k accounts, and IRA accounts can pass to your loved ones outside of the probate process. Every financial institution that holds or manages these accounts has a simple ‘payable on death’ form you can fill out that designates the person or persons you want to receive these funds upon your death.
Are There Ways To Avoid The Probate Process In Texas?
Probate is not always necessary if the deceased’s assets are solely non-probate in nature, such as banks accounts, life insurance proceeds, 401k accounts, and IRA accounts. If the deceased owned real estate however, the will needs to be probated in order for the property to pass to the person or persons identified in the will.
What Is Probate Litigation?
A ‘will contest’ is the most common form of probate litigation. The contestant often alleges that the decedent lacked competence or was unduly influenced at the time of the will’s execution. Oftentimes this occurs because the will contestant had expected to inherit from the decedent or had been a beneficiary of the decedent’s estate in a prior will.
Who Is Able To Contest A Will Or Estate?
Any person who may have an interest in the decedent’s estate.
How Does Probate Litigation Affect the Probate Process?
When a probate proceeding becomes a contested matter it will take a longer time to finalize. The process also becomes exceedingly more expensive for all parties involved.
How Can The Validity Of A Will Be Determined?
A trial can determine the validity of the will contest. However, the parties often resolve the will contest in an out of court settlement.
Can A Decision Made By The Probate Court Judge Be Appealed?
Do I Need An Attorney For Probate Or Trust Litigation?
In my opinion, you always need an attorney before a probate court. My office will work with you to find a solution you can afford.
How Can I Avoid Probate Litigation?
Make sure your wishes are abundantly clear when your will is prepared and that it specifically and accurately reflects those wishes.
What Kinds Of Gifts Can Be Disputed?
Gifts are made during one’s lifetime. Gifts are most often land, investments such as stocks and bonds, or cash. A guardianship can be sought for the donor if the donor appears to be lacking competence or is being unduly influenced by another.
What Sets Your Firm Apart In Handling Probate Matters?
I take a full-service, client-first approach. And I always keep in mind how I would want my family to be treated if they were sitting on the other side of an attorney’s desk in their time of grief. Everyone deserves compassionate and skilled assistance with their most important legal affairs, and that is what I provide to all my clients.
For more information on Probate Litigation In the State Of Texas, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (210) 987-3333 today.
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