If you have been named the executor to someone’s will or recently lost your spouse, you may have questions regarding how and where to file for probate. The probate process can be one of the more daunting aspects of handling the affairs of a deceased person. Whether it is navigating someone's will, learning what it means to be a beneficiary, filing documents in court, or deciding whether or not to hire an attorney, the aftermath of a person's death can be daunting no matter what role you are going to play in that persons a state after their passing.
If you have a loved one who passed away and left property to other people but did not have a trust set up, then it is likely that their property will be administered through the probate process. There are legal mechanisms such as creating a trust, having joint ownership agreements with the right of survivorship, or having payable on death accounts through a financial institution that allows the property to bypass the probate process. If you are interested in creating one of these arrangements, then it is recommended for you to contact the Law Office of Bryan Fagan. We can work with you to discuss that process with one of our experienced probate and estate planning attorneys.
Otherwise, the probate process is that the County where your loved one died will recognize there having passed and will also administer the payment of their debts in the distribution of their assets to beneficiaries or heirs. The probate court will administer a state resolution by ensuring that the Texas probate code is followed and that creditors and beneficiaries are attended to promptly. Keep in mind that there can be many moving pieces when administering a person's state after their passing. This can be a daunting responsibility and is one of the probate courts that will work with you to ensure it occurs as efficiently as possible.
If your loved one died with a valid will in place, then they die testate. Dying testate means that you died with a will in place that is valid under the laws of Texas. That will must have named an executor who will follow through on the terms of the will; they will likely file the will for probate. Depending on the County where your loved one passed away, there are various rules that the executor must follow to follow through on the requests of their loved one properly but also on the timeline required by the state of Texas.
Many people who act as the executor of a person's will are not aware of all Texas laws surrounding this process. It could be that your loved one has passed away and that you were unsure of exactly how to proceed. Some of you reading this blog post may not have had the necessary funds to hire an attorney to assist you or even seek a consultation with a lawyer. As a result, you may have some questions about the timeline for filing a petition to probate a will.
For starters, if you are acting as executive two or will, you have four years from the date the person who drafted the will dies to file for probate. Again, the proper court, in all likelihood, to file for probate would be in the County in which your loved one passed away. If you do not follow the will within four years, it will be as if your loved one died without a will. At that point, the state of Texas, in its laws regarding how property is treated at the time of a person's death, would go into effect. The will would have no significance in all likelihood.
When it comes to a relatively small estate, commonly, the probate process can be wrapped up within six months. This would be an ideal situation, however. Even the smallest state can take longer to probate if there is an issue with the will. For example, they will contest for various reasons by a person inside the family or outside. Additionally, there may be an issue with tracking down the will. In any situation like this, the court will become more involved in taking the timeline and extending it further and further out. As a result, it is recommended to read the will before the passing of the drafter of the will to ensure that the people in your loved ones' life understand what is going where it has an opportunity to discuss it with that person.
Are beneficiaries of a will able to access the property if there is no attorney involved?
Even if it takes a few months to probate the estate of a loved one, if you are the beneficiary under that will, you do not necessarily have to be left without any access to property or funds while the probate process is ongoing. Some of the properties that your loved one passes through their will may not have to go through the probate process. There is a probate estate and also a non-probate estate. Typically, retirement accounts and insurance policies are non probate assets that do not go through the probate process. They would pass directly through the financial institution to the beneficiary named in the policy or account documents.
If you do not have a probate attorney to help you through this process, there is a great deal that you would need to learn to make sure that your loved ones a state is handled correctly if you are the executor. In some courts, you have to have an attorney file applications to probate a will or in a state. Only lawyers may represent a state in court in many cases. Making decisions about the type of probate that should be filed and the allocation of assets to multiple beneficiaries can all be tricky subjects that are having an attorney will help with.
All of this becomes relevant even before you begin to consider that some legal terms and processes are unfamiliar to you while going through someone's will and probing it eating it is not as complex as brain surgery; this process can indeed be complicated or confusing to someone he was not experienced in this area. If you can file for probate in your county without an attorney, you need to do your homework preparing the case and learning the ins and outs of the probate process in Texas.
What is an independent administration?
Of the two types of probate procedures in Texas, the simplest of the two is an independent administration. The court would appoint you as the administrator of the estate, and you would be responsible for providing details to them about the estate and the property contained therein. Once those inventories are filed, you would then be able to administer the estate without having to consult with or gain approval from a probate court judge. The vast majority of States that are probated in Texas are independent administrations. Your loved one may have even included a provision in their will that specifies the will is to be independently administrated.
On the other hand, a dependent administration occurs when the court is much more involved where you would have to get the probate judge's approval to move forward in any step of the probate process. Typically, you see dependent administrations occur when beneficiaries are fighting regarding the will or over the assets of your loved one who just passed away. The beneficiaries are supposed to be protected under a dependent administration. The fees in costs associated with dependent administrations are significant compared to independent administrations. Many times would occur when the costs of this dependant administration R are taken out of the estate, and all the beneficiaries lose money.
A vocabulary lesson
As I mentioned a moment ago, it can be confusing for Amber to have to step into a probate court without any knowledge of the legal process surrounding probating a will or in a state for a loved one who does not have a will. With this in mind, I wanted to share some thoughts on what terms in the legal world you ought to know before doing so. If you haven't already figured it out, the will is a legal document that your loved one will have utilized to specify how he or she would like their assets distributed at the time of their death. I figured that most of you know what a will is, but I suppose there is no better time to mention it than right now.
A pretty crucial set of rules R shared between an executor and an administrator. Your loved one in their will names an executor. This is the person who will inventory in organize all of your loved one's assets. The property contained in their estate will be utilized to pay debtors any taxes that are owed. The assets of the estate will then be paid to any beneficiaries that are named under the will. A will is typically probated through the county's probate court in which your loved one passed away.
On the other hand, if your loved one passed away without a will, then a Texas court may appoint someone to act as an administrator of their state. Typically, a child or spouse of the person who died is named as the administrator. The probate court would then follow the probate laws of Texas in determining how to pay creditors and divide assets contained in the estate. As a result, much of the autonomy that we citizens of Texas have regarding our property at our death he's done away with if your loved one were to pass away without a will.
If you decide to enter into the process without an attorney, where should you start?
The first thing that you probably ought to do is figure out the appropriate probate court in which to file for probate. You can perform a simple Internet search and look up the website for these various probate courts. Each one will have a website containing the name of the judge, the name of the judge's clerk or coordinator, and the basic rules for filing for probate—no matter what court you must file in, the rules, or likely to be fairly similar. However, there are probably some differences along the way that you need to be aware of. Since you have never engaged in the process, you most likely need to be aware of what these differences may be and how they can affect the probate process.
Generally speaking, the first step of the process would be to apply for probate. Not only is this first step the launchpad for your entire case, but you must be sure that the probate process is begun in the right court. If you were to file for probate in the incorrect court, you will be thrown out of the courtroom and have to start with the correct probate court. This causes you to lose time and, ultimately, money.
Once you file for probate, there will be a two-week waiting period That allows the court to consider the application. Most importantly, the County Clerk will post the notice at the courthouse saying that a probate application has been filed. This will allow any potential beneficiaries or heirs to file a contest to the will or the administration of their loved one's estate. If no contests are received, the probate court will proceed to start the administration process. This typically means that the judge will legally recognize the death of your loved one, and if there is a will, the judge will ensure the validity of that document. If there is no will or is not valid, then an administrator will be appointed.
The assets of your loved one will then be organized and set forth for the court to consider. The administrator or executor will be in charge of doing so and will have up to 90 days after their appointment to do so. This is a very detailed list and of the descriptions involved for assets in property. Locations and valuation of the property at the time of your loved one's death must be included. The more complex the estate is, the more complex and detailed the list must be.
The executor of your loved ones will must then notify all beneficiaries obvious state that the probate process is underway. If no will has been filed in the probate court, it will be easier to determine who your loved ones are. This can be a complex situation that involves posting notices in newspapers and other sources where heirs may reside. Any creditors can also begin to intercede into the probate process to make sure that their claims are heard and weighed in on by the court.
Most folks who die do so with debts of various sorts. As a result, these deaths have to be sorted out and then paid out of their state. If you are named as the executor of your loved ones in a state, you must notify each creditor that you are aware of. That creditor will then be able to file a claim against your loved ones in a state. Typically, in Texas, you would file a notice to creditors in a newspaper.
As it sometimes happens during the administration of my state, there will be disputes between mirrors and efficient Aries. Contesting a will means that the state cannot be finalized and that the process becomes much longer and more complicated. Trips to the courthouse for hearings in front of the probate court judge are commonplace. As a result, it is best to make sure, but if you are entering into this process as an executor, beneficiary, or heir, that you have an attorney by your side to assist you in this process. There is a timeline involved with contesting or will, and having representation is important to ensure this timeline is followed in that no deadlines are missed.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed probate and estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas probate law and how the filing of a probate case may impact your family and their circumstances. I appreciate your interest in our law office, and we hope you will join us again as we post more relevant content about the world of estate planning, probate in family law.