No matter if a will is written by hand or typewritten, it will need to be proved in court to determine its validity. The process of proving a will in court is known as probate and needs to take place within four years of a person passing away. If you are going to be serving as the executor of a will for someone this is an important piece of information to understand. Of course, the circumstances that you find yourself in likely make it so you will want to begin the probate process as early as possible. There are tax considerations, potential spoiling of property as well as eager beneficiaries who will want to begin the process sooner rather than later that you will need to be mindful of.
There are a handful of criteria that must be met for a will to be valid under Texas law. This begins with the will having been signed by the testator (the person whose will it is) or another person at the direction of the testator. Two witnesses need to have watched the signing of the will and those witnesses need to have signed the will in front of the testator. These are the basic requirements of a will as far as validity is concerned in Texas. So long as there is no indication that the will has been revoked or canceled it is a good sign that the will is valid.
What is a self-proved will?
Unless the will that you have been named as the executor under is self-proved, there will need to be witnesses available to testify in court regarding the handwriting of the testator. For a typewritten will, one of the witnesses will need to come forward and testify as to their having viewed the signing of the will. The court is attempting to prove the authenticity of the document, i.e., that the document is what you say it is- the will of your loved one, friend, etc. It can be a challenging experience to attempt to probate a will when the validity of the will is in question. This can slow down the process tremendously. So that there are no future challenges to the validity of the will a probate court will use this process to authenticate the will.
Going before a notary is something that you can encourage your loved one to do to attain the classification of a “self-proved” will. There will need to be a specific type of affidavit (sworn statement under oath) that is included with the will that will be notarized. By attaching this affidavit to the will, it becomes a self-proving will and no witness testimony will be required to prove the validity and authenticity of the will. From there, you will be able to attend to the matters that you were called upon to perform distributing property to beneficiaries after creditors have been made whole.
If a will cannot be proved in court, then it is invalid. This means that the will is not worth the paper that it is printed on, and it would be as if the will were never created in the first place. In a situation like this, the laws of intestate distribution would kick in and the probate court would follow the law in Texas as far as dividing property. Dying intestate is just a fancy way of saying that a person died without a will. Not only would your loved one not be able to have their final wishes honored as far as how their property will be distributed but their efforts to create a will would have been fruitless. However, assuming that your loved one will be valid the process will shift towards administering his or her estate.
Administering an estate in probate court
The process of administering an estate involves managing and settling an estate by a person who is approved by the probate court. This process is not always necessary, however, when the deceased person (known as the decedent) has a very small estate to the point where no courtroom involvement is necessary to distribute property to beneficiaries or heirs. Keep in mind, however, that situations like this are the exception rather than the rule and most estates will need to go through the administration process.
There are a handful of steps involved in the administration process. The first involves collecting the decedent’s assets. An administrator or executor of an estate will need to round up all the property in the decedent’s estate to ultimately divide that property amongst beneficiaries or heirs. For some people this will be simple since all the person’s property may be in their home. For others, this may involve research and time to track down all the property in an estate so that it is organized for the administration process.
A necessary step in this administration process does not often get attention- namely, the process of paying off debts associated with the decedent's estate. Most people tend to think about the probate or estate administration process purely as a matter of divvying up the property. And why not? That is the "fun" part. However, before you can get to this essential step you must also concern yourself with understanding what debts if any, need to first be paid. Debts are paid out of the corpus (body) of the estate so whatever is left over after debt payment will go towards beneficiaries. You may be able to obtain a credit report for the decedent to see what accounts are held in the same of that person so that you can start to get an idea of who needs to be paid in these circumstances.
Since Texas has no estate tax you would only need to concern yourself with the federal estate tax implications that are a part of the estate in question. Even then, the current level for an estate tax to be a part of the equation is north of $12 million. If the estate that you have been involved with crosses this mark, then you will need to start thinking about getting those taxes calculated so that they can be paid out of the estate’s assets.
This is where the process begins to differ for those people who died with a will in place versus those who passed away without a will. If your loved one died with a will and named, you as executor then you would proceed to distribute property to those who are named as beneficiaries. On the other hand, if you are involved in the process for a person who died without a will then you will likely be named as an administrator of the estate by the probate court. Your role at this stage would be to participate in the process as the probate court judge determines the heirs of your loved one. Heirs are persons who are legally entitled to inherit property from a deceased person who has no will.
Regardless of whether you were named as an executor of a will or have been appointed to act as the administrator of an estate, you will have certain legal obligations to be aware of. That duty is owed to the beneficiaries under the will or to the heirs of the deceased person. You can be held liable for misconduct that damages property or wastes property. When it comes to administering an estate in Texas there are a handful of methods that a court could choose to employ depending upon the circumstances that you find yourselves in.
An independent estate administration
An administration process that is free of the court's need to supervise its processes is known as an independent administration. You would then be able to act as the independent executor or administrator for your loved one's will or estate. You would first need to be approved to act in this capacity by the probate court. A filing of an inventory of the estate would then need to be given to the judge. At that point, you may be given the latitude to administer the estate without the court having too much of anything else. This means that you can try to settle debts with creditors as well as manage the property owned by the estate. You may also need to develop a market to sell certain assets to pay the debts of the estate. Whatever property is left over after these steps are taken can be distributed to the beneficiaries or heirs. This independent process can save time and money if done correctly. The key is that as the executor or administrator, you will not need to get the court's permission to follow through on any of these steps.
The person whose estate you are assisting can create language in their will to jump-start the independent administration process. Specifically mentioning your name and stating that you are named as the independent executor of his estate with additional language is all that is needed. This one paragraph can make the estate distribution for you that much simpler. Rather than having to account for the probate court judge at every turn you would be able to handle matters related to the estate without having to stop and seek court approval, this is a major benefit to an independent administrative process.
If your loved one did not specifically allow for independent administration in the will you can still be a part of an independent administration if all the beneficiaries approve of it. Most courts will agree with the request, but some will not. In that case, you will need to adjust your methods to seek approval from the court to make decisions. This will likely increase costs and delay proceedings relative to an independent administration but at this stage, you don't have much of a choice.
What is a small estate affidavit?
A small estate affidavit is an option for you and your loved one’s family if he died without a will. This is an option if your loved one's estate is valued at less than $50,000 not counting the homestead, some personal property, and non-probate assets. In this case, using a small estate affidavit no administration would be necessary if the heirs file an affidavit with the court showing that they are entitled to receive the property in question. A small estate affidavit is not necessarily only for people with limited wealth. In a situation where non-probate (investments like IRAs, etc) assets, as well as real estate, represent most of the property at stake then estates like these would seem to be good candidates for a small estate affidavit. You will need to do a thorough investigation of the assets to determine how the property in the estate is comprised so that you will know whether this is an option for your situation.
What do you do after your loved one passes away?
It can feel like an incredible burden to have to go through the probate process or even consider it after a loved one has passed away. You may feel like all you want to do at this time is to be with family and remember the loved one who has passed away. However, death is both a personal and a legal matter. This means that if you are that person's spouse or are acting as the executor of their will then you need to be able to handle both sides of this equation.
Fortunately, our office has a method for you to employ in your situation that can help on the legal side of things. It may not seem like it right now but the more prepared you are for the legal elements of your loved one's passing the better off you will be on the personal and emotional side of it. We find that the people who handle legal matters correctly have more bandwidth and time to be able to attend to the emotional and relational aspects of a loved one passing away.
How to get documents in a safe deposit box
Many people choose to store their will, trust documents, and other estate planning forms in their safe deposit box. While this is a safe place it may not be the easiest for someone to be able to access. When your loved one dies and has will documents in their safe deposit box it presents a challenge as far as how to obtain the documents. With that said, the bank where the safe deposit box is stored as a way to be able to get the will so that you and your family can get to work on seeing what needs to be done next.
A spouse, a parent, or an adult relative of the person who has passed away can access a safe deposit box at most banks. The bank employee will likely need to look at the contents of the box while you or another person is looking through the items. Once the will is located it would be delivered to the court or executor by the bank employee. Insurance policies and burial and funeral home information are other types of documents that may be found in the safe deposit box.
If you find yourself in a position where the bank or financial institution does not allow you or another person access to your loved one’s safe deposit box, then you may need to go to court and get an order for you or another person to be able to do so. You would need to show the court that it is likely that your loved one’s box does contain the will.
What to do if there is no will?
If your loved one dies without a will then the law will determine how their property will be divided. The goal of a probate court judge will be to divide up the property efficiently based on the applicable laws of intestate distribution. Keep in mind that the law will be followed regardless of who ends up with how much property. The people who were closest to your loved one may end up very little while a person who was a close relative may end up with more despite not being personally close with your loved one.
With so many moving pieces and with the stakes as high as they are you and your family need to have help and perspective that you can trust. The attorneys with the Law Office of Bryan Fagan thank you for joining us today. We want you to know that our office is here to help you along this journey and look forward to the possibility of serving you and your family.
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 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 estate planning law as well as about how your family's circumstances may be impacted by the filing of a probate case.
