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Probate
is a lawsuit filed in a local court after the client passes
away. In Latin, the word "probate" means "proving the Will."
Simply stated, it is the legal process of settling an estate
under the jurisdiction of the Probate Court. Upon the client’s
death, once the Will is admitted to the Probate Court, it
becomes a part of the public records. Then the “executor” or
“administrator” will gather and inventory the client’s property,
pay the debts, and everything left over will be divided among
the client’s heirs. While the executor or administrator is
responsible for "probating" the Will, the process is generally
controlled by the court and a probate attorney. Texas has an
efficient and generally cost effective probate process provided
the decedent has a properly drawn Texas Will. Only assets titled
in the decedent's name will pass according to a will and are
probated. Non-probate assets titled in the name of a trust,
jointly held assets, or accounts naming a beneficiary, are not
probated.
We never recommend a Will (which has to be probated) if the
client owns property in 1 or more state or if there are
provisions that we would include in a Will that the client would
prefer to keep private (drug use, incapacity or one of the
heirs, illegitimates, disinherison or other private family
matters). Probate makes ALL of your personal records PUBLIC -
including the date of death, the terms of the Will and the
assets the deceased owned at the time of death. The fact that
some stranger can sit at his or her computer and know the
details of the deceased's life with a couple of clicks is
frightening to most of my clients.
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Probate can also sometimes be inefficient, time-consuming,
expensive, and emotionally distressing for some family members.
As a result, the lack of privacy and cost cause many families
choose to avoid probate.
Can Probate be avoided?
Probate can be avoided with careful planning. There are
several techniques available that enable an estate to avoid the
time, expense, and public nature of a probate. But the most
comprehensive and streamlined way to avoid probate is by placing
assets in a Revocable Living Trust, because trust assets, in
most situations, can be distributed to beneficiaries almost
immediately after the death of the trust-maker (i.e., Trustor).
Types of Probate Proceedings
Texas has several types of probate proceedings, which are
different in the time required and expense. There are different
kinds of probate procedures, depending upon the nature of the
decedents assets whether the decedent has a valid Texas will,
and total dollar value of the assets. The most common processes
are as follows:
Independent Administration
The most time efficient and cost effective probate procedure
for mid-size to large estates. A valid Last Will and Testament
is admitted to probate and Letters Testamentary are issued.
Unsecured creditors are served with the Notice to Creditors.
Secured creditors are also notified and may in turn file a
Statement of Claim. The Independent Executor appears in Court to
qualify then files and Inventory with the Court but otherwise
acts “independent” of Court oversight.
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 Dependent Administration
This probate procedure is used when an estate has numerous
debts or if the Will does not name an independent executor or
the named agent does not qualify as an independent executor. All
actions in a dependent administration require court action in
order to take the action. This is usually the most costly and
time consuming proceeding.
Determination of Heirship
If decedent dies without a valid Will, the court will
determine who the heirs are based upon Texas Law. This will
require “notification” of all potential heirs. This may also
result in a dependent administration. This can be a costly and
inefficient means of distributing an estate. The State of Texas
plan for heirship provides for different distributions to
various heirs based upon degree of blood relationship and type
of property. These issues can be eliminated with a Will.
Muniment of Title, Small Estate Administration,
Affidavit of Heirship, and several other proceedings may be
instituted. (Call our office for details.)
These proceedings are in many cases, solutions to cases where
there are very few assets, no Will was probated within the
required 4 years or as “curative” measures. They are typically
much less efficient than an Independent Administration.
Estate Taxes
Depending upon the gross value of the assets of the estate,
inclusive of insurance and other “non-probate” assets, federal
estate tax may be due. The gross estate includes trust assets,
life insurance, assets held in the decedent's name, jointly held
property, accounts designating a beneficiary, life insurance,
annuities, etc. The estate tax return (IRS form 706) is due 9
months after death.
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