Probate & Estate Administration
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It is particularly difficult after losing a loved one to have to deal with such tasks as sorting through the deceased person’s property and accounts, ascertaining his or her debts, and making distributions to the beneficiaries, some of whom may not realize how complicated and time consuming these duties can be. If you find yourself in charge of a deceased person’s estate, we can guide you through the steps you must take to settle the estate.
What do I do if the deceased person left a Will?
A common misconception is that, if a person dies with a Will, there is no need for probate. Unfortunately, that is not the case. A Will does not have any validity to transfer assets until a judge issues an order stating that the Will is the valid last Will of the person who passed away. The process of going through the court process of approving the Will and complying with the requirements of Texas law after a Will has been determined to be valid is known as “probate.”
The typical “simple” Texas probate (assuming there are no unusual issues concerning the Will) involves the following steps:
- The original Will and an application to probate the Will prepared by an attorney is filed with the County Clerk (usually in the county where the deceased person resided).
- There is a period of at least 10 days before a hearing may be held to probate the Will. This time period is required to allow anyone who wants to contest the Will to file a contest.
- An attorney, and in certain counties, the person named as executor, must attend the court hearing during which testimony is given to prove that the Will is the valid last Will of the person who died and that the person named as executor is qualified to act.
- The judge signs an order admitting the Will to probate and appointing the executor, after which the executor is issued “letters testamentary,” an official document showing that the executor has the authority to access the deceased person’s assets.
- The executor needs to arrange for a “notice to creditors” to be published in a local newspaper (even if the deceased person had no creditors) announcing that anyone who has a claim against the deceased person should present it to the executor.
- The executor needs to give notice to all the beneficiaries named in the Will (including charities) letting the beneficiaries know that the Will has been admitted to probate. The notice must include a copy of the Will.
- The executor needs to prepare an inventory of the deceased person’s assets. This inventory must be filed with the court and made public, unless the deceased person did not have any debts, in which case an “affidavit in lieu of an inventory” may be filed with the court. In any event, the inventory must be distributed to the beneficiaries of the estate.
- After the court approves the inventory filed by the Executor, the Executor’s duties to the court have been fulfilled.
After the inventory has been filed, the duties of an Executor include making sure that the deceased person’s final tax return has been filed, paying the deceased person’s debts, and distributing the remaining assets to the beneficiaries.
What happens if the deceased person did not leave a Will?
Unless all of the deceased person’s heirs agree to apply to the court for an independent administration (meaning an estate administration that is not overseen by the court), the estate of a person dying intestate (meaning without a Will) will be supervised by a judge who will appoint an dependent administrator answerable to the judge. In most cases, the administrator will have to post a bond. In addition, the administrator will have to request the court’s permission almost every time the administrator wishes to deal with an asset of the estate, including making an investment and paying a debt. Before a distribution may be made to the deceased person’s heirs, the court will oversee a proceeding referred to as an heirship proceeding to determine the identity of the deceased person’s heirs. As part of the heirship proceeding, the court will appoint an independent attorney (not the attorney for the administrator of the estate) to represent the deceased person’s unknown heirs, minor heirs, and heirs who may be incapacitated and unable to enforce their own rights to the estate. This independent attorney, known as an attorney ad litem, will investigate the deceased person’s background and will make a report to the court. The fees for the attorney ad litem are paid for out of the deceased person’s estate. During the heirship proceeding, two witnesses who are not heirs of the deceased person must appear in court to give testimony regarding the deceased person’s family background. If any of the deceased person’s assets are to be distributed to a minor child or an incapacitated person, another proceeding may be necessary for a guardian to be appointed for the minor child or incapacitated person.
If a person dies without a Will, who are the deceased person’s heirs?
There are three sets of rules for determining heirs under Texas law. One set of rules applies to unmarried individuals, another applies to the separate property of a married individual, and another applies to a married person’s community property.
A deceased unmarried person’s heirs are:
- The deceased person’s children and the descendants of a predeceasing child; or if none,
- The deceased person’s mother and father in equal shares; or
- If only a mother or father is surviving, the deceased person’s property is divided in half and split between the surviving parent and the deceased person’s brothers and sisters and the descendants of a predeceasing sibling (or all to the siblings, and the descendants of a predeceasing sibling, if no parents survive); or
- If there are no siblings or descendants of siblings, all of the deceased person’s estate passes to the surviving father or mother.
A deceased married person’s separate property passes as follows:
- If a person dies leaving a surviving spouse and children, the surviving spouse receives one-third of the deceased person’s separate property that is not real estate (referred to as personal property), and the balance of the deceased person’s separate personal property passes to the deceased person’s children and their descendants. The surviving spouse is also entitled to a life estate in one-third of the real estate of the deceased person, with remainder to the children of the deceased person.
- If a person dies leaving a surviving spouse and no children, the surviving spouse is entitled to all of the deceased person’s personal property, and to one-half of the deceased person’s real estate, or all of the deceased person’s real estate, if the deceased person is not survived by a father, mother, nor any surviving brothers or sisters or their descendants.
A deceased married person’s community property passes as follows:
- The community property of a deceased spouse passes to the surviving spouse if no descendant survives the deceased spouse, or if all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
- If a child of the deceased spouse is not a child of the surviving spouse, the surviving spouse keeps his or her half of the community property and the deceased married person’s half of the community property passes to the children or descendants of the deceased spouse.
How we can help
After a loved one passes away, we assist you by performing a thorough review of the family situation, the deceased person’s assets, and the potential for creditors, to determine the most efficient and cost-effective way to transfer the deceased person’s property to the beneficiaries or heirs. We always attempt to minimize court involvement, but if it becomes necessary to go through the court’s probate procedure, we will assist you in fulfilling the duties imposed on an executor or administrator by the court and Texas law.
We counsel clients on probate, estate, and trust administration issues in the following areas:
- Probating a Will and assisting the Executor in administering the estate
- Court proceedings to determine a decedent’s heirs, if there is no Will
- Small Estate Affidavits
- Affidavits of Heirship
- Documenting asset transfers to beneficiaries
- Funding trusts for beneficiaries
- Federal estate tax returns
- Dealing with creditors in an estate
- Probate of “foreign wills” executed in a state other than Texas