At some point in your life you will likely find yourself involved in the probate of an estate. That involvement could be the result of being the legal heir or a named beneficiary of the estate of a decedent. You could also find yourself appointed by a decedent in a Last Will and Testament to be the Executor of an estate or you could volunteer to be the Administrator of the intestate estate of a decedent. Regardless of why you are involved in the probate of an estate, a basic understanding of the probate process will be invaluable. Moreover, a better understanding of the probate process will help you with your own estate planning efforts. At McGee Law Firm, our experienced probate attorney can guide you through the process as well as help you prepare your own estate for the impact probate will have on the estate.
What Is Probate?
Probate is the legal process that serves to administer the estate of someone who has recently passed away. Although the probate process is unique for each estate, there are some common steps that occur during the probate of a typical estate, including:
- Identifying, locating, securing, and valuing the assets of the decedent.
- Initiating the probate process by submitting the decedent’s Last Will and Testament (if applicable) along with a petition to open probate to the appropriate court.
- Identifying and locating the legal heirs if the decedent died intestate (without a Will).
- Notifying creditors of the estate to allow them time to file claims against the estate.
- Reviewing claims filed by creditors and approving or denying each claim.
- Paying approved claims with available estate assets.
- Arranging for the liquidation of estate assets if necessary to pay debts of the estate.
- Defending the estate against claims or disputes.
- Calculating and paying any federal and/or state gift and estate taxes due.
- Transferring any remaining assets to the intended beneficiaries and/or heirs of the estate.
Who Oversees the Probate Process?
If the decedent left behind a Last Will and Testament, the individual named as the Executor in the Will is responsible for overseeing the probate of the estate. In that case, the terms of the Will determine how the estate assets are distributed at the end of the probate process. If the decedent left behind an intestate estate, meaning without a Will, someone will likely volunteer to oversee the probate of the estate as the Administrator. In an intestate estate, the state laws of intestate succession dictate how the estate assets are distributed.
One fairly unique feature of the Texas probate laws is the requirement that anyone who petitions to administer an estate (an Executor or Administrator) must be represented by an attorney. Texas law requires legal representation because an Executor/Administrator represents the interests of other people, namely the beneficiaries and/or heirs of the estate.
Is Probate Always Required?
Some type of probate is typically required to ensure that assets are properly accounted for and transferred to the new owners. In the State of Texas, however, estates of modest value and/or without complex assets may qualify for a less formal version of probate administration that can save both time and money.
In addition, some assets are not required to go through probate at all. Non-probate assets bypass the probate process altogether and include assets such as:
- Trust assets
- Proceeds of a life insurance policy
- Certain types of jointly held property
- Assets held in a “Payable on Death (POD)” or “Transfer on Death (TOD)” account
- Certain retirement and pension accounts
Why Is Probate Avoidance a Common Estate Planning Goal?
Many people include probate avoidance as a primary goal when creating their estate plan for several reasons. Privacy is one of those reasons. Once your Will is submitted for probate, the terms of the Will become public record, meaning anyone can learn the details of your estate distribution. Conversely, the terms of a trust, which bypasses probate, remain private. Another reason to avoid probate is the cost, both in terms of time and money, of formal probate. It usually takes at least six months to probate even a relatively modest estate in Texas because creditors must be given at least four months to file claims against the estate. The more complex and/or valuable the estate assets are, the longer it takes to get through the probate process as a general rule. Finally, everyone involved in the probate of an estate is entitled to a fee for services. Those expenses, which are paid out of estate assets, can significantly diminish the value of the estate that is ultimately passed down to loved ones. Fortunately, by making probate avoidance a primary estate planning goal you can create a plan that avoids probate altogether, or at least dramatically decreases the time and money spent on probating your estate.
At the McGee Law Firm our experienced probate attorney is committed to helping you navigate the Texas probate process in your role as Executor, Administrator, beneficiary, or heir. We can also help you incorporate probate avoidance tools and strategies into your estate plan to decrease your estate’s exposure to probate after you are gone. Contact the team today by calling (817) 899-3286 or fill out our online contact form.