Estate Planning In San Antonio, Texas: What You Need To Know And Why You Need An Attorney
Estate planning is an ongoing process where an experienced attorney assists you with putting in place your financial and healthcare wishes, in order to make sure that they are honored upon your death or your incapacitation. Using the tools that estate planning offers is the most surefire way to ensure that your children, spouse, and other family members or friends are taken care of after your passing.
Probate Vs Estate Planning In San Antonio
While many people use the terms probate and estate planning interchangeably, they are actually not the same process. When a person dies and leaves behind the property that has not been automatically transferred to another person via a trust, joint ownership with a right of survivorship, or another estate planning tool, the property, in Texas, will have to be distributed through the probate process.
Probate is the legal process that takes place when a court formally recognizes a person’s death and validates their will if they have prepared one. The probate judge oversees the payment of the deceased individual’s debts as well as the distribution of their assets. This process of wrapping up the decedent’s final financial affairs and distributing their assets to their heirs is known as probate administration.
If the deceased has drafted a will, the personal representative or executive they named in the will must be the one to file for probate. The general rule in Texas is that the personal representative or executor has four years from the date of the death to file for probate. If this person does not file for probate within this time period, the estate will be treated as if the decedent had died without a will in place.
Probate can take months or even years to complete, but some specific assets can be transferred outside of the process. The whole of these assets makes up the decedent’s non-probate estate. These special assets could include life insurance, pensions, profit-sharing, and 401(k) accounts. Non-probate assets can be transferred directly from the bank holding them to the beneficiaries who are named on the accounts without entering court. Without a qualified San Antonio estate planning attorney to guide you, the Texas probate process can be very intimidating, expensive, and time-consuming.
Estate planning is commonly used to avoid the probate process altogether. A skilled San Antonio estate planning attorney can present to you a plethora of tools and explain which would work the best for you and your unique life circumstances.
Texas Estate Planning And Probate Terms To Know When Communicating With Your Attorney
When you begin to learn about the estate planning and the probate process in Texas, you will likely discover many terms that you are unfamiliar with. Before you contact a San Antonio estate planning attorney to present to you your options, it can be helpful to familiarize yourself with the definitions of the following common terms:
- Will: The legal document wherein a decedent has specified how he or she wants their assets distributed after they die.
- Decedent: The person who has died and left behind assets to beneficiaries.
- Beneficiaries: The loved ones who will receive assets from a decedent’s estate, either as named in the will or decided by the court.
- Estate: The sum of all of the decedent’s assets. These assets can include cash, bank accounts, real estate, stocks, bonds, life insurance, retirement accounts, vehicles, and all their personal belongings.
- Executor: The person named in a will who will inherit certain duties, including inventorying and cataloguing the decedent’s assets, paying the final debts and final taxes of the estate, filing lawsuits for any debts owed to the estate, and distributing the estate’s assets to the beneficiaries.
- Administrator: The person named by the court to administer an estate when the decedent did not leave a will.
- Trust: A legal arrangement where the registered ownership of assets are transferred to a trustee, who will thereafter have a fiduciary duty to manage and distribute those assets for the benefit of the beneficiaries of the trust. Different types of trusts can be used for specific purposes, such as to achieve certain tax goals or to avoid the probate process.
- Trustee: The person who holds legal title to the assets in a trust and manages and distributes those assets according to the terms and conditions specified by the trust. A trustee could be an individual or could be a bank or a trust company.
- Fiduciary duty: A very serious legal responsibility imposed upon a person, requiring them to exercise the highest levels of integrity when dealing with the assets entrusted to them.
- Advance Medical Directive: A legal document wherein a person names an individual to make their medical decisions if they become unable to do so. The document can also express the person’s wishes as to the extent of life-extending medical care desired in the case of imminent death.
The Stages Of The Probate Process In San Antonio, Texas
The probate process in Texas is a long, exhaustive, and daunting one. It is highly recommended to seek out the guidance of a San Antonio estate planning attorney to ensure that your loved ones will not be left behind to deal with an overwhelming probate case once you are gone.
- Stage One: Filing: Your application for probate is required to be filed in the Texas probate court in same the county where the decedent resided.
- Stage Two: Posting: Once your probate application is filed, a hearing will be held regarding the application. While you are waiting for this hearing, the county clerk will post a public notice at the courthouse for anyone who may wish contest the will or the administration of the estate. If no such contests come forth, the probate court will open the administration.
- Stage Three: Will Validation: A Texas probate judge will preside over the initial hearing and will recognize the decedent’s death on the record. The judge will verify that the decedent either had a valid will or that they left no will, and will appoint an administrator or an executor.
- Stage Four: Cataloguing Assets: The executor or administrator is required to catalogue all of the decedent’s assets and then report them to the county clerk within 90 days of appointment.
- Stage Five: Identifying Beneficiaries: If the decedent left behind a valid will, the executor will notify the beneficiaries named therein. If no will was filed, then the probate court must determine the beneficiaries of the estate. This can be a very difficult process, which a qualified probate and estate planning attorney in San Antonio should guide you through. All parties interested in the estate may file to determine heirship in the county where the property in question is located. If there may be unknown heirs of the deceased, the court will require that notices be posted in local newspapers.
- Stage Six: Notifying Creditors: Most decedents leave behind multiple debts. All of these debts must be paid in full by their estate. Common debts upon a person’s death include final medical bills, mortgages, and taxes. Creditors are to be notified of the decedent’s death as soon as possible by the estate’s executor or administrator and given the opportunity to file a claim against the estate. The notice to creditors can be also be given via a notice in a local newspaper.
- Stage Seven: Resolving Disputes: If there is an active dispute, the estate cannot be finalized. If a potential beneficiary is contesting the will, it must be heard by a judge before the probate case can be closed. In Texas, a will can be challenged up to two years after it has been probated.
- Stage Eight: Distributing The Assets: After all of the estate’s debts are resolved and any disputes are resolved, all remaining assets will be distributed to the named or determined beneficiaries.
The Importance Of Finding An Experienced Estate Planning Attorney In San Antonio, TX
The areas of Texas law that pertain to probate and estate planning are incredibly vast. In addition, they are very much subject to change on a very sudden basis. Not only do you need a San Antonio estate planning attorney to assist you in making sure that all of your documents and plans are compliant with the latest laws, you also need to make sure that they stay that way until your death. It is imperative, once you identify your wishes and craft them into a legally valid estate plan, to continue to work with your San Antonio estate planning attorney throughout the rest of your life. If a law changes that render all or part of your estate plan invalid, you want to be able to quickly realize this the next time you check in with your attorney. Then, you are able to correct it, rather than leaving it to surprise your loved ones after you are gone.
Seth Bell, Leading Probate And Estate Planning Attorney In San Antonio
Attorney Seth Bell of the Law Office of Seth K. Bell has over twenty years of experience under his belt when it comes to passionately attending to the legal needs of people who need high-quality representation. Having a legally valid, updated estate plan in place is one of the most thoughtful and meaningful parting gifts you could possibly leave behind for your family and loved ones when your life ends. The Law Office of Seth K. Bell can help you make it a reality today.