Estate Planning and Probate: Maximizing the Benefits of a Will

When we talk about a will being distributed most people will immediately think of all the property that a person owns being divvied up to the people listed as beneficiaries in the will. We can picture a scene from a movie where the lawyer is reading the will aloud to a group of people who are doing their best to wait until their name is called along with the property that they are set to acquire. The anticipation ramps up after each name are called. Some surprises arise and usually, a young, trophy wife ends up getting more property than anyone.

The process is not necessarily that simple. Yes, the property listed under a will must be distributed but it usually does not work out that nicely where the property can just be delivered immediately with no other steps that need to be taken. As we are about to see, there are several steps involved with the distribution of property by the executor of an estate to the beneficiaries of a will. If you are the beneficiary then you would like the property as quickly as possible, understandably. Here is what you need to know about how long an executor has to distribute assets.

Probate court-time timeline and process

The fact that you are looking through the blog on an estate planning attorney’s website is a good sign. Whether you are the executor of an estate or are a beneficiary this means that you are trying to learn as much as you can about an important process. If you are the executor, then you have the responsibility to perform the work of the estate during a probate case. You are required to execute upon the wishes of the deceased individual not according to what you want to see happen but according to what the will states. There are also legal requirements for distributing property, paying creditors, and generally maintaining the case throughout the probate process that you need to be aware of.

As a beneficiary, you have fewer responsibilities than an executor. Your role is more passive, in that you are going to receive something (maybe) once all the affairs of the estate and the probate case have been attended to. There is no guarantee that you will see the property that you have been promised in the will because the first order of business is to pay creditors of the estate. If there is any property left after the estate has been divided up, then the beneficiaries (including you) would get the property out of the estate. Until then you would be an interested party to the probate case but would not play an active role in the day-to-day machinations of the case. It pays for you to be involved and be informed, however.

If you are the executor of an estate, then you have four years after the death of the decedent to begin the probate process. This means filing the will with a probate court and then waiting for your case to be assigned a case number. Usually, you would file for probate either in the county where the decedent passed away or in the county where he or she resided before their passing. Sometimes this county will be the same. You are bound by your role as executor to file the will for probate promptly and not just sit around. This goes beyond a moral duty to do so and is a legal, fiduciary duty. You owe it to the creditors of the estate as well as the beneficiaries to act in this capacity and to do so to the best of your ability.

Here is the thing that many people overlook when it comes time to file a probate case or to otherwise move forward with a case like this. The decedent’s estate is not wiped clean just because he or she has passed away. Rather, expenses and taxes can accumulate on the estate in time after he or she has passed. This means that the person can be assessed taxes, property taxes, and other fees associated with their life. If a home is still owned in the person’s name, it must be insured. All of these costs would be borne by the estate. Therefore, the quicker you can attend to the probating of the will the better off everyone will be including the estate of the person who has passed away.

On the other hand, if you are a beneficiary and you are watching the executor sit back on their heels and do nothing to move the case forward in the probate process then you are probably going to be less than pleased. More than that the executor is probably violating their fiduciary duty to put the estate and its beneficiaries ahead of any other interest he or she may have. In that sense, you may be able to play a legal role in the probate case and move things forward if possible. More on that later.

What property exists, and how much is there?

One of the first things that an executor of an estate should do after a person has passed away is to start to inventory the property in the person’s estate. Filing the will for probate is probably step one, but once the court approves of you as an executor then it is up to you to start to collect the probate assets and then estimate a value for each asset. This assignment could be known as an inventory and appraisal. Most of the time this is done early in the process. In Texas, an executor must conduct an inventory within three months of the decedent passing away.

Debts, taxes, and other fun stuff

Some assets have debt associated with them and if you are an executor this is something you need to perform some due diligence on to determine what needs to be taken care of before distributing assets to beneficiaries down the line. This is a factor that is sometimes overlooked by people involved in the process of probating a will. We all like to think about the property being divided because that is sort of the silver lining to the dark cloud of a loved one passing away. However, before we can get to the property side of things, we also need to get to the business at hand of making creditors whole. So where to start?

This is the issue that is the most important when it comes to dividing up property and probating a will. One of the first points of business that an executor must attend to after being approved by the court is to notify creditors of the decedent’s passing. This can take some time for a couple of reasons. The first reason being is that it can take some time to notify creditors and to allow them to respond to you. Fortunately, there is no state estate tax in Texas so that is something that you would not have to worry about if you are an executor.

What are other factors to consider when it comes to the time necessary to distribute property in an estate?

When it comes to the probate process several factors will need to be considered that we have not yet gotten into here in today’s blog post. As always there will be individual, specific circumstances that you may need to consider. For those types of questions, we recommend contacting the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer you the best opportunity to ask questions, receive feedback, and plan for whatever circumstance you are facing when it comes to estate planning or probate-related legal matters.

If the estate that is being probated is small and has little to no debt, then you may not need to wait any longer than six months to have the case probated. A larger estate will have more moving pieces, more creditors’ claims to handle, and more property to inventory and appraise. Figure that the timeline for these types of cases will be longer and more drawn out. More issues arise and more problems need to be solved as a result. You also need to think about where the property needs to be dealt with. If the decedent owned property that is found in multiple states, then you may have some difficulty in getting that property sold or in transferring ownership of the property to the beneficiary.

What benefit does having a will present?

Having a will is a big deal in the world of estate planning. Planning means that a person puts some degree of thought into how he or she would like to have their affairs handled after their passing. So, when we talk about estate planning the most basic yet important type for most people is a will. Having a will controls assets that are in your name after you pass away. When comes to certain types of property like investments and life insurance then are properties that not only do not have to be passed via a will but also do not need to go through probate. Otherwise, most other properties will need to be accounted for via your will.

Another benefit of having a will is that you can control where the property goes after you pass away. While the property does not automatically go to the state after you pass away, it can end up there if you do not have any immediate family in Texas. We all want autonomy over our lives, but we do not always put into practice the tips and tricks that can help us achieve that autonomy. We envision a certain future for ourselves but do not put in the leg work to achieve that future. The trouble with the end of life and estate planning is that a lack of planning on your part in these subjects is that you may run out of time in your life to perform the steps that we have described to you so far in today’s blog post.

If you are an executor what are some events that you should keep in mind?

Accepting the role of an executor is a massive responsibility. With that said, you may be willing to pursue the responsibility but don’t exactly know where to start. Allow us at the Law Office of Bryan Fagan to spend some time going through a short list of activities that you should be engaging in as an executor.

When the decedent has passed away you should immediately review the will or any additional instructions left by the decedent. In some cases, you may need to help with burial and funeral activities that are outside your duties as an executor but still something that you had agreed to help with. Be sure to review these documents and ask for clarification from a spouse or other loved one if there is something included that you do not understand. It can be intimidating to step into a situation without much guidance. If your decedent did not plan to acclimate you to the situation, then you are flying without a net to a large extent. It is up to you to gain the knowledge and perspective that you need to be successful as an executor.

If there are valuables that you can physically get a hold of then you should do so. Sometimes this means driving around to the person’s properties and making sure doors are locked, gates are closed, etc. The properties will be distributed to various beneficiaries so making sure they are safe and whole is important. Those people are expecting you to act as a fiduciary and to look out for their best interests. Failing to do that is asking for trouble.

Once you have gotten your feet underneath you as far as being executor you can set about canceling all paid subscriptions and other memberships that the person may have had during their life. We all know that subscriptions to watch various television programs or memberships in different clubs or societies can be a major part of many of our lives. This is something that may require you to perform some degree of due diligence to make sure that you are canceling the various subscriptions and memberships that were part of their life. You can also count credit cards, debit cards, driver’s licenses, and other government resources as a part of this process.

Any place that the decedent gets bills from should be notified as well. Utility companies, mortgage companies, or even different financial institutions should all be notified that your loved one has passed away. At this point, you can begin to make a list of the person’s assets and can even begin to estimate their value. It would make a lot of sense to contact an experienced estate planning attorney you can review the information with you and determine what sort of help you may need in probating the will or in beginning to notify creditors.

There are some types of assets like life insurance and retirement proceeds that do not need to go through probate or even be mentioned in a will. You can work with those entities to make sure that the beneficiaries listed on each plan are paid out accordingly. By this time, you should have been able to list out all of the deceased person’s assets and have valuations listed for any of them. It also pays to be able to reach out to the estate’s beneficiaries to talk to them about the will. Hopefully the deceased has already done this during their lifetime but if not, that responsibility falls to you. If any creditors exist, then you should work with them directly on having their debts paid as fully as possible. All of this is likely to be done during the probate process. A court will give you letters testamentary that you can send out to verify that you are acting with the permission of the probate court and performing all these actions.

Eventually, you will be tasked with selling any assets as required by the will. The debts that are being settled with the creditors will need to be handled before distributing property. Once all debts have been accounted for then you would be able to distribute specific assets to beneficiaries as required by the will. You should always document these steps and keep good records for yourself of the different steps that are taken. Filing taxes for the person’s estate would be among the last steps that you need to take as an executor. Once the property has been distributed to beneficiaries and debts have been paid to creditors for the most part your responsibilities as an executor come to an end.

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Other Related Articles:

  1. Can You Live in A House During Probate?
  2. The Role of a Texas Estate Planning Attorney in Probate and Estate Planning
  3. Taxes and Probate in Texas: What You Need to Know
  4. What is an Heirship Proceeding in Texas Probate?
  5. What Happens To Debt in Texas Probate?
  6. How to Avoid Probate in Texas: Tips and Strategies
  7. Understanding Probate in Texas: What You Need to Know
  8. How to avoid probate in Texas: Basic strategies for estate planning
  9. Understanding the Role of the Executor in Texas Probate
  10. The Basics of Texas Probate: A Guide for Executors and Heirs
  11. 5 Common Misconceptions About Texas Probate and Estate Planning
  12. How long does an executor have to distribute assets?
  13. Non-Probate Transfers Do Just That
  14. What assets do not go through probate?
  15. Is a codicil legally binding?

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