Probate Frequently Asked Questions
What Is Probate?
The Probate Process that we are speaking of today is that of a Simple Probate. The Probate process consists of an Original Will with a Self-Proving Affidavit attached to the Will. This type of Will enables the attorney to prove-up the Will more easily and less complicated for the clients as well. Without having this type of will, additional disinterested witnesses (people not benefiting from the Estate) and also the subscribing witnesses of the original signing of the Will have to come to the hearing and testify.
When having a simple valid Will, the Estate is more easily flowing and aside from cheaper costs of Probating the Will, the protocols and deadlines are similar in the typical Probate process.
Once you have established your witnesses, Oaths, Orders and Proofs that have to be prepared by an attorney you have three mandatory deadlines that are expected from the Courts. After the prove up hearing where the client has been sworn in as the Executor or Administrator of the Estate, the first deadline to be completed within thirty (30) days consists of notifying all the heirs of the Estate. Most of the time this is an easy process; however sometimes you have heirs that need to be located and this could be time consuming. Once the heirs-at-law have been identified the Attorney will prepare an official Notice and file with the Courts.
The second deadline is to Notice the Creditors that again an attorney has to prepare and file with the Courts. The attorney also has to prepare an Affidavit of Compliance and file with the courts to avoid any penalties against the client and or Estate. This is the step to officially notify any creditors against the Estate. A benefit of hiring an attorney is that the Attorney has the authority to negotiate these claims for the heirs-at-law and is able to lower if not dissolve the debt in its entirety.
The most important deadline for a Probate is the preparation and filing of the Estate Inventory. This can be a complicated process due to how large the Estate is let alone how to divide the assets accordingly. If the Inventory is not filed within ninety (90) days from appointment as Executor or Administrator or a Motion for Extension is not filed the Courts can penalize a client for delay by making them pay a fine. Therefore, it is imperative that the client(s) always communicate with their attorney, paralegal and requests from the Firm.
In conclusion, once the Inventory has been filed with the Courts, the Order Approving the Inventory has been signed by the Judge, the attorney can then begin to assist with the division of assets to the heirs-at-law. This too can be a complicated process due to Receipts of Devise and preparing the correct Affidavits and Receipts of Devise to ultimately excuse the Executor or Administrator of their duties and responsibilities. As an Executor or Administrator, they have been appointed by the Courts and are ultimately reliable and held accountable for all assets from the Estates.
Why do I need to probate?
The Executor is bound by the Courts and obligated to fulfill all duties of the Estate. If the Executor does not comply accordingly, then a dispute or a contest can arise from lack of maintaining the fiduciary duty to the Estate. The Executor must distribute all assets in accordance to the Last Will and Testament and if they do not then they are subject to removal as the Executor and can even have a lawsuit filed against them for misconduct, or even fraud. The main purpose of Probate is to distribute the assets to the beneficiaries in accordance to the Will or the Estates Code.
How does the probate process work?
Some of the responsibilities of the Executor are to notify of all the heirs that are to be a recipient of the Estate. This task alone can prove to be difficult at times when families drift apart through the years; however, the Executor has a fiduciary duty to notify all heirs at law and may even have to post an announcement in the local newspaper.
After notifying all heirs and providing them with copies of the will if there is one, the Executor then has to notify all the creditors of the Estate by official publication. Once notice has been published, the Executor has to then begin to negotiate the outstanding bills that are against the Estate. With the assistance of an attorney, the debtors are more than likely able to accept a reduction of the balance owed by the Decedent. The attorney negotiates on behalf of the Executor and has to keep a record of all funds paid on behalf of the Estate. The Executor has the final approval and must authorize payments to all creditors. The attorney then must keep a ledger of all payments paid and include them within the Inventory for the Courts approval.
With the help of an attorney the Executor then must complete an Inventory, Appraisement and list of Claims due and owing for the Estate. The executor must Inventory all items of the Estate including real property and even personal items of the Decedent. Most Estates you are able to waive an appraiser; however, the Executor is responsible for inventorying the entire Estate. The purpose of this is to obtain the total value of the Estate so that the funds can be distributed to the heirs at law or the heirs that are listed within the Decedent’s last will and testament.
Once the Inventory has been investigated and approved by the Judge; the Judge will then sign the Order Approving the Inventory. After this occurs the Executor then has the ability to begin distribution of the Estate. The Executor must provide the beneficiaries with copies of the Inventory and have the attorney draft receipts for the division of either property or funds that the beneficiary is to receive. All beneficiaries must sign for the acceptance of funds in order to relinquish the Executor from its duties.
After all funds have been distributed and the receipts have been filed with the Courts the Executor may now file to close the Estate. In order to officially close the Estate, all receipts for division of property must be filed, and all beneficiaries must receive Notice of Closing the Estate. The beneficiaries must sign a receipt of receiving Notice and relinquish the Executor from the Estate. If all notices and receipts have been filed accordingly to the Estates Code, then the Estate will officially within thirty (30) days after the last filing as been submitted.
Do I need a lawyer to probate?
Majority of Courts require that you have an Attorney to assist with the Probate process. As an Executor or Administrator, they have been appointed by the Courts and are ultimately reliable and held accountable for all assets from the Estates. Our Attorneys strives to be fair and equitable when it comes to all asset divisions down to the last penny. We clearly do not want any bad faith claims or accusations towards our client’s or the Estates that we handle. We strive to achieve all deadlines prior to the actual demand for them, and to assist our clients with the most effective knowledge and preparation of the Probate processes. Without having the knowledge to prepare for the demanding deadlines, filing of appropriate Motions and Orders to the Courts has proposed several penalties against the clients. Therefore, in order to comply with the Estates Code, it is essential to have an Attorney assist you with the process.
Why is a lawyer beneficial?
An Attorney is beneficial because the Attorney is knowledgeable of the Estate code and the requirements of each Court. Having someone that is knowledgeable and aware of the Courts expectations assists with moving the Probate process along.
Does all property go through probate when a person dies?
The property that goes through Probate is property that does not list a specific beneficiary. Real property such as house, vehicles, bank accounts that do not have a payable on death beneficiary or Rights to Survivor beneficiary listed must be Probated. Personal property and Community property also passes through the Courts during Probate.
Who is responsible for handling probate?
The person that is named in the Decedent’s will is the person that is responsible for Probating the will. When someone nominates an Executor/Executrix, then this is the person that must fulfill the Decedent’s wishes. In the event, someone passes without having a Will, then a spouse, child, parent or creditor can file on behalf of the Estate.
Should I plan to avoid probate?
There are several ways to avoid Probate but it requires pre-planning with your Estate Planning. You should consult with an Attorney if you are interested in bypassing Probate and formulate an Estate plan that works with your needs such as a Trust or even Lady Bird Deeds also known as a Life Estate Interest Deed.
How long does probate take?
A typical Probate can take anywhere from six months to a year to complete. Some Estates depending upon the assets can take years to complete if an Executor has to sale property etc. However, once the Application to Probate an Estate is filed with the Courts and the twenty (20) day notice has expired you can essentially set the matter for hearing. The day of the hearing you are issued the Letters of Testamentary or Letters of Administration which allows you the legal capacity to officially administer the Estate. Therefore, you are able to acquire the assets such as Bank Account access and the ability to place the property for sale with this document. The Attorney will continue to prepare the documents required to meet the courts requirements throughout this process to ensure that all deadlines are met in accordance with the Texas Estates Code.
Will probate cost money?
As with any Court proceeding, Probate does cost money. The Executor or Administrator is responsible for any retainer fees; however, they are able to seek reimbursement from the Estate once the distribution process is completed. The Probate process varies in retainer fees due to the circumstances of the Estate and the allocations of the will. On average an estate with a will starts at 2,500.00 initial retainer fee but could cost nearly 5,000.00 to complete. If someone passes without having a Will, you could be looking at an initial retainer of 3,500.00 and could look at a total of 7,000.00 to complete. Again, this varies due to circumstances such as property, number of beneficiaries, contesting the will or having Co-Executors.