One of the saddest aspects of death for many families in our area is that the family cannot properly grieve the passing of a loved one because of financial concerns. Whether the passing of the loved one was expected or sudden, it goes without saying that the impact of the death have a loved one, and family member is significant. Part of the grieving process is taking the necessary time to work through any emotions and feelings that may have arisen due to the passing and physically be present with your family to share in those emotions.
Unfortunately, when there are unanswered questions regarding a person and their desires about how their property should be divided at their death, this can lead to issues down the road. These financial issues can take attention away from properly processing and going through the grieving process. Not only that, it presents an additional set of circumstances where your family would have to concentrate and think hard about matters. At the same time, your attention is being diverted in a million different directions. Needless to say, it is not the best of circumstances to have to wade into waters like these immediately after the passing of a loved one.
The process whereby your loved one's property will be divided at their death is called probate. The property and debts included in your loved ones' life are generally referred to as their estate. Whether or not your loved one dies with a will can determine the course the case goes in. Whether or not your loved one is married or has children will determine in large part who ends up getting their stuff at the time of their passing if there is no will in place. These are the basic factors that will be most important when determining how property division goes: whether or not your loved one has a will, whether or not your loved one is married or whether or not your loved one has children.
From my experience as an attorney, I can tell you that having a will is probably the most important thing a person can do to prepare for their death. By having a will, naming an executor, and helping them to prepare for what you want to see at the time of your passing occur to your property, there can be a lot of peace for a family, which would otherwise allow for proper grieving rather than worrying and consternation about how property will be divided.
What does probate mean?
When it comes to distributing your loved one's property in a clear and manageable way, probate is the name of the game. A probate court will make any final determinations whether a will (also known as a testamentary document) is the true and accurate last will of your loved one. Sometimes a person will create multiple documents that appear to be a will.
Any property controlled by what your loved one’s Will mentions will go through the probate process. When the probate process comes to an end, the court will distribute its assets according to the terms of the will. If your loved one has any creditors, then there may be a property that goes to pay that creditor if any money or property is available in the will. Notice of your loved one's passing will need to be provided to the creditor to allow them to assert the right to be repaid for any money owed to them.
You should probate your loved one’s Will once they pass away. Once the Will is determined to be valid, then all systems will proceed towards completing the probate process. If your loved one is your spouse, you should first determine if your spouse died with a Will. If you know for certain that they did die with a Will, then you should locate the Will and provide a copy to the executor of the Will. They are the person or entity empowered by the Will and your spouse to execute on the terms of the Will and the wishes of your spouse.
A probate application will and for issuance of letters testamentary (try saying that three times fast) should be filed with the clerk of the county court where your loved one passed away. The executor of the Will should be the person who files this application. Many times your spouse may not have any property that needs to go through probate. If all their property is non-probate and would go directly to you, then going through the probate process may not be necessary.
I'll stop for a moment and recommend that you speak with an experienced estate planning and probate attorney with the Law Office of Bryan Fagan before going through the probate process. If you can avoid going through probate court and can execute the terms of the will completely, then that is a "win-win." There is nothing wrong with going through the probate court to administer the Will, but if you can avoid doing so, there is nothing wrong with that. This will save you time, money and will allow you to distribute their property more efficiently. Of course, if your spouse dies with debts, then you will likely need to go through the probate process, however.
Once you have determined that going through the probate court is necessary for your situation, you should hire an attorney before moving forward. Although hiring a probate attorney may cost some money, it will help you run the case more efficiently and save you money and time in the long run. The clerk of your court will issue a citation to any party or creditor that may have an interest in the probate process of your spouse's estate.
A court date will be set, and these parties or creditors will be asked to appear. At the hearing, the executor of your spouse’s will should present the Will and proof of your spouse’s death. An order will be issued by the judge that probates the Will and appoints the executor formally as the person who will be in charge of administering your spouse's wishes. Letters Testamentary will be issued to the executor that allows him to act on behalf of your spouse’s estate. These letters testamentary are documents from the court that authorize them to execute the Will. These letters should be presented in any instance where proof is needed that approval from the court has been obtained to move forward.
How much does it cost to go to probate court?
We have already discussed to some extent the costs of hiring an experienced probate law attorney to represent you in this process. However, there are additional costs that you need to consider as you embark on the journey to probate your loved one's Will. As you may have suspected, Texas does its best to make this process as simple and streamlined as possible. Not only will this save you money, but it will allow you to save time, as well. Once the letters testamentary are received, Executors of a Will largely operate outside the presence of the court and have the autonomy to do what is necessary to execute the Will with relatively little court intervention.
In certain circumstances, however, there may need to be a bond posted by the executor to follow through on the terms of the Will once the letters testamentary are obtained. This would be the case in what is known as a dependent administration. The Court would need to be contacted before any actions being taken by the terms of the Will. The bond that the executor pays is like an insurance policy against malfeasance or mismanagement. If for some reason, a dependent administration becomes necessary for a will that you are the executor of, then I would recommend hiring an attorney. That attorney will need to spend a great deal of time requesting permission from the court to perform your duties.
An independent administration is more common, however. As you may imagine, an independent administration of a Will is less dependent on daily approval from the court to perform the duties of an executor. No bond needs are posted. No approval from the court needs to be obtained before taking action according to the terms of the Will. Typically, your loved one can decide in their Will whether or not a bond needs to be posted or not. If this option is selected, then the process should run more efficiently, be less costly, and take less time, all other factors being equal.
However, you should be aware that even an independent administration requires certain boxes to be checked along the way for the case to conclude. You should be familiar with your court's requirements to probate a Will, even if yours will be an independent administration. IF not followed through properly, creditors of your loved one's estate may not be able to collect money from their estate. Any conflicts between family members or heirs of the estate may present circumstances in which a dependent administration may be preferable, given that the court can make difficult decisions in the event of conflicting terms of a Will. Finally, if your loved one died owing many creditors' money, then you may want to consider filing to proceed as a dependent administration.
What is a basic overview for you to follow as an Executor of a loved one’s Will?
I wanted to provide you with a guide for proceeding if you are the executor of a loved one's Will. Rather than guessing how to move forward during a difficult time in your life, you can begin to consider the steps you would take in the event of your loved one's passing. Hopefully, your loved one will have alerted you to the fact that you were named as an executor of their Will. Even if not, this list should provide you with a good starting point on how to proceed.
First, you will need to find the will that your loved one originally drafted. Hopefully, they will have had a conversation with you about the will before their passing, especially if you are expected to be the executor of that will. Some common places where wills may be left are in a safe at home, a safety deposit box at a bank or credit union, in a file cabinet, or even in a desk drawer or bedside table. The most important question in the entire probate process is whether or not your loved one died with a will. It would follow, then, that finding the will is the 1st order of business.
Next, you should find out where probate matters are handled in the courts for your home County. Once you have determined the proper court to file in, you should file the original will with the application for probate of will and issuance of letters testamentary if this sounds like a legal process to you, that is because it is. As a result, you should consult with an experienced estate planning or probate attorney before following through with these steps. A good way to lengthen out the probate process and possibly make mistakes along the way is not to hire an experienced Probate law attorney to represent you.
The County clerk will take the next step in the process for you. They will issue a citation and post notice at the courthouse that an application for probate of your loved ones will have been filed. This allows any creditors or potential heirs to become notified of the passing of your loved one to allow them to attend any in-court hearings where proceedings regarding the probating of the will. The court will then allow these folks to come forward for a certain period before a hearing is held. The purpose of that hearing will be to admit the will into probate and issue letters testamentary.
Once the hearing is held, you will be named executor if that is what the will provides. You will then tell the court any facts of the passing away of your loved one and go through the necessary steps to prove the validity of your loved ones' will. If your loved one went to an attorney to draft the will or even went through basic software to do so on the computer, then the necessary language to prove the will's validity is likely included already. If not, testimony in addition to yours may be needed to prove its validity.
As soon as the judge signs the order that admits the will into probate, then you would take the oath to perform your duties as an executor in front of the judge. Once this is done, you would receive letters of testamentary from the court to execute on the will. A separate notice of creditors will be prepared and sent to a newspaper in your area to be published within 30 days after receiving the letters testamentary. The newspaper would send an affidavit to the court telling them that they published the notice as required by law.
At that point, you would need to send notice that the letters testamentary have been issued to any creditors who have liens against your loved one's property within two months of the court date where the judge signed off on letters testamentary. You will also need to send certified letters to each beneficiary named in the will within the same period. Part of this process is also preparing an inventory and appraisement of the assets and any list of claims made by creditors against your loved ones as a state. You will need to file taxes by the tax due date for the following year on their estate. Due to the size of your loved ones, it is possible that federal taxes will not be due.
Finally, your loved ones a state should be disbursed as provided for in the will. This is pretty simple stuff. Follow the terms of the will and execute according to what the will says, not what you believe should be done. Creditors need to be paid out of the will, and there is an order by which they will be paid according to the Texas state's code. Last, if any new titles need to be issued for property such as real estate, vehicles, or things of that nature, that can be processed.
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 and probate law 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, state planning, and probate law, as well as how your family may be impacted by circumstances related to these subjects.