Probate is a process by which the estate of a deceased person is both validated and executed. Probate simply is having the appropriate court in your county, whether Collin, Dallas, Denton, or Tarrant, validate the existence of a decedent’s will and allow the executor of the will to take care of the business affairs of the decedent’s estate. Texas allows for estates to be probated within four years of death; after four years, there are a limited number of options for settling the estate.
Independent Administration. This type of estate administration allows the executor or administrator more freedom in settling the estate’s affairs. Under Texas law, the administrator is appointed to serve independently of the Court’s authority. The executor must meet a few requirements before receiving approval (see Probate Process below). Once those requirements are met and fulfilled, the independent administrator is free to pay debts of the estate, sell any property, cash in stocks, etc. without any further Court supervision. This option is reduces the amount spent in time and costs, but there is no continuing protection of the estate by the Court.
Dependent Administration. The default type of estate administration in the state of Texas is a dependent administration. This means that the executor or administrator of the estate is dependent on the Court’s authority to act on behalf of the estate. For example, a dependent administrator is required to seek the Court’s approval prior to paying debts of the estate, selling any property, cashing in stocks, etc. A dependent administrator must file annual accountings with the Court, detailing any income and expenses, and provide receipts for expenses and statements of all bank accounts. This option is much more time consuming and costly, but provides the most protection to the estate and the heirs.
Our office typically recommends and guides our clients through an independent administration as it is the most cost-effective option for estates; however, Ms. Stokes would be gladly to go over your situation to determine the best avenue for you.
Assuming the proper measures were taken in drafting and executing the Will, no estate tax issues exist, and there is no contest to the Will, the following procedure is usually the one taken to settle an estate, typically by way of an Independent Administration:
Phone Conference and meeting with the attorney. Ms. Stokes will discuss your situation with you and your family. If it is determined an independent administration is the best avenue, the attorney will meet with you in a follow up in-office appointment to review the Will and Death Certificate. Both the original Will and a certified copy of the Death Certificate are required prior to probating the estate. While we do recommend you have both documents, you are not required to have them prior to speaking with the attorney over the phone.
An Application is made and filed with the Court. This is a 2-3 page document that states general information about the Will and decedent. A copy of the will is attached to this document. Usually the Executor files the application with the assistance of the attorney.
Notices are sent to beneficiaries. This is a letter sent to any person listed as a beneficiary in the Will, such as spouse, children, or other family members. The beneficiary must sign a waiver that they are aware the estate is being probated, which will then be filed with the Court.
Court Appearance. Assuming no complications exist, only one court appearance is usually required. The hearing lasts around 5-10 minutes and the hearing admits the Will to probate. At the hearing the Executor is sworn in and Letters Testamentary or Letters of Administration are issued. Letters Testamentary or Letters of Administration allow the Executor to handle the deceased’s property.
Inventory, Appraisement and List of Claims. An Inventory of the decedent’s estate is made and filed with the court. This Inventory is not complicated and the attorney will assist you in handling this task.
Distribution. The Executor distributes everything according to the Will. A large number of bills may complicate the distribution. However, with some planning between the attorney and the Executor, assets can be preserved and bills paid at a relatively low cost.
If there is no Will, or if there are complications, such as a beneficiary contesting the validity of the Will, additional steps may be taken by the attorney.
AFFIDAVIT OF HEIRSHIP
An Affidavit of Heirship is a document that identifies the rightful heirs of the deceased and what interest they have in the property. This document is commonly used when the deceased only owned real property (not personal property) but did not have a will. The Affidavit will list the property owned, the current and former spouses at the time of death (along with their marital information, such as marriage date, marriage location, last known residence, and if applicable, date of divorce or death), children born to the decedent (along with their information, such as date of birth, other parent, last known resident, and if applicable, date of death and their survivors), and information about the decedent (such as date of death, location of death, and whether they had a will).
Legally, only one affiant needs to swear to and sign to the Affidavit; however, at our office we recommend one affiant who is not related to the deceased, and two witnesses, one who may be related and one who is not related. Many title company underwriters require as many safeguards as possible, and in the event of no clear chain of ownership, a clear and confirmed Affidavit of Heirship will securely clear title of the deceased’s interest.
MUNIMENT OF TITLE
Muniment of Title is a unique procedure in the state of Texas where the Will is filed through the probate court to transfer ownership of real estate only to the beneficiaries stated in the Will without a deed or full probate. It is the least expensive way to settle an estate by going through the probate court, especially if there are no objections to the Will, and is the only administration that allows probate after the four year cutoff. If the deceased owned personal property as well at the time of death or if someone wants to contest the Will, then a full probate (such as administration) is required. A valid Will is required in order to transfer this property. If no Will exists, it may be possible to transfer the property using an Affidavit of Heirship.
When a child becomes 18 or an adult becomes incapacitated, a Guardianship can be put in place to handle their affairs legally. There are two types of Guardianships that may be put in place. The incapacitated person, also called a Ward, becomes dependant on the Guardian for finances, personal well-being or both.
Guardian of the Person. A Guardian of the Person is in charge of where the Ward lives and, if necessary, who takes care of them.
Guardian of the Estate. A Guardian of the Estate is in charge of the finances. An annual report must be filed each year with the Court. The Guardian of the Estate takes precedence over a power of attorney that might have previously been in place. It is important when putting a power of attorney in place that you either communicate with them your choice for a guardianship in the event of a later incapacity, or appoint the same person to both power of attorney and guardianship.
A Guardianship will only be granted by the Court if it is deemed completely necessary. There are steps taken by the Court to ensure the Ward will be properly cared for by the Guardian, including a doctor’s statement as to the degree of incapacity, a bond posted with the court and a full hearing.
Please contact us for a consultation to determine the right plan for the estate.
After Ms. Stokes agrees to take your case, a retainer is required to cover court fees (with the exception of an Affidavit of Heirship). Once the case has been completed, a final invoice will be sent to you for remittance. We also offer to send you monthly invoices for remittance instead upon request.