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What questions should you ask a probate lawyer?

The most straightforward questions that I can think of that you would want to ask an attorney who practices probate law relates to what you should do after someone passes away. Facing the prospect of handling complicated financial and estate-related matters while balancing the normal human emotions associated with losing a loved one can be difficult, to say the least. Having no idea whether or not that loved one has a will or what their intentions were with the property in question can make the situation even more precarious. Figuring out how to move forward from a death in your immediate family can seem to be an insurmountable challenge.

What should you do if your loved one has documented it in a safety deposit box?

It’s a tried-and-true method for keeping important documents secure- keeping them in a safety deposit box. The tricky part of this discussion comes into play when your loved one keeps their Will in a safety deposit box that you cannot access. I will often recommend folks that they have an "end of life" discussion with their loved ones ASAP, so you have a plan to go off of before it is too late. Most banks allow certain people related to the decedent to access a safety deposit box even to retrieve the Will, even if you are not listed on bank documents as having permission to do so. A court order would need to be obtained by you first before this can happen, however.

If you are the decedent’s spouse, parent, any descendant of the deceased person who is at least 18 years old, then you can potentially gain access to a safety deposit box even without prior, written permission by your relative who has passed away. Keep in mind that the Texas Estates Code does require that the examination of whatever you find in the safety deposit box happen with an employee of the bank or financial institution present. This is important because if a will is located inside the box, then the employee will likely be the one to deliver the will to the clerk of the probate court or the executor of the will.

If your relative died without a clear indication of what is to happen with their burial, there might also be a deed or other instructions included with the will or in the safety deposit box when it comes to their burial. Again, instructions regarding burial will likely be delivered from the person working at the bank to the executor of the will. The same rule applies to insurance policies like life insurance documents or other types of policies where beneficiaries are to be paid upon the death of your relative.

What happens if the bank does not allow you access to your loved ones' safety deposit box?

Although this is what the law states should happen in the event of your relative passing away, that does not mean that it is guaranteed to occur the first time. Your love, would they have a safety deposit box with a bank or other financial institution that is not aware Texas was on this subject. As a result, they deny you access to the safety deposit box. At that point, you would likely be asking yourself what options are available for you to gain access to the box when the bank employees did not permit you lawful entry.

Obtaining an order from the court that permits you to access the safety deposit box would likely be your best and possibly only route to gain access. The Texas Estates code allows a probate court to order the particular bank to allow you access to the safety deposit box under certain circumstances. First, the bank would need to open shown to lease a safety deposit box to your loved one, and Secondly, the box likely contains the last will of your loved one. The court may also grant access if your loved ones' burial information or insurance policies are located in the safety deposit box.

Once you obtain an order from the court and are named as the representative who can access the contents of the safety deposit box, you will be allowed to do so provided that the judge also appoints an agent or representative of the court to review the contents with you. If your loved one's will, burial information, or insurance policies are found during the inspection, then the court would likely order the bank employee permission to allow you access to the documents and have permission 2 take the documents home with you.

Keep in mind that no other documents, cash, or any other contents of the safety Department box can be removed in this instance. A will must be delivered to the clerk of your probate court. As you can see, while you can gain access to your loved ones' safety deposit box, the circumstances under which you might do so are limited. If you find yourself with questions about what you can and cannot do in these circumstances, you should reach out to one of the trusted estate planning attorneys with the Law Office of Bryan Fagan to discuss this matter in greater detail.

What can happen next if your loved one dies without a will?

If your loved one dies without a will, then the state of Texas will determine how their property is divided. The state's overall goals will be to distribute their property; it is not necessarily focused on equity, fairness, or the wishes of you or any other family members. In this way, the law tries to act as objectively as possible to determine how closely each air was related to your loved one. The nature of your relationship with your loved one or any other relatives' specific relationship with your loved one is not relevant.

Based on this, it should be clear that dying without a will can create unintended consequences and not beneficial or desired results. Having a will can increase the likelihood that your loved one has their wishes granted when it comes to distributing property at their death bucket, eliminating the state's role in performing any actions related to their death. It also decreases the cost and time associated with administering their estate upon the death of a loved one.

How is property classified in Texas?

Just as in family law, the Texas probate code divides property between being community and separately owned. Separate properties are any property that you or your spouse owned before you were married. There are limited circumstances in which separate property can be acquired during your marriage. For example, if you are gifted property or inherit property from another person who has passed away. On the other hand, Community property is any other property that you or your spouse acquires during your marriage. If you were to die without a will, then the state of Texas would determine who your errors are and how your assets are distributed. Much of this decision would hinge upon the property being classified as community or separate in nature.

The big point is that if your loved one dies with a spouse, then that spouse will inherit their property will go to their spouse alone. On the other hand, if your loved one dies with a spouse and children, but not all the children were the children of the spouse who survives them, then a different set of rules applies. In that case, the surviving children should then receive the loved one's share in one-half of their community property. Their spouse would receive the remaining one-half share of their community property. Their spouse would also have a right to live in the marital home for the rest of their lives.

How would your loved one’s separate property be divided if they pass away without a will?

If your loved one dies without a will, has no children but is married, then all separate personal property of theirs would pass to their spouse. The separate real property would go ½ to their spouse and ½ to your loved one's parents, brothers, sisters, or any of their descendants. Keep in mind that if your loved one has no relatives other than a spouse, then all separate property would go to them. On the other hand, if your loved one dies with children and a spouse, then the rules for distributing separate property at their death are a little different. Separate personal property would pass 1/3 to their spouse and 2/3 to their children.

What is the difference between probate and non-probate assets?

Suppose you have a loved one who dies with a will; that is important since we have seen what happens to their property if they die without a Will. A Will does not control how all of their property will be distributed upon their death. If an asset or piece of property were to pass under the Will, it is known as a probate asset. However, there are non-probate assets as well. These would be assets that a Will does not cover.

Joint bank accounts (with a spouse or other person) with a right of survivorship, individual retirement accounts, life insurance policies, payable on death/transferable on death accounts, certain types of real estate, and assets owned by a trustee where the decedent is a beneficiary are all non-probate assets and do not pass under a will.

Is it a certainty that your loved one’s estate would be probated?

Your loved one's spouse would likely choose not to have their estate probated when most of the assets or property of your loved one would pass to the outside of the probate process. After all, this makes sense: why needlessly involved the legal system in the death of your loved one unless necessary. However, one key factor in evaluating is what can happen if your loved one's spouse attempts to sell the family home some years into the future.

Do all estates need to go through the probate process?

This is a fairly simple question to answer, but you should ask an attorney whom you are meeting with, nonetheless. A Will does not necessarily need to be probated. If you are talking about non-probate assets, then those assets do not need to be probated. Smaller estates that include only a few assets or an estate that is not valuable, then a full probate administration likely is not necessary, either.

What exactly is probate?

The probate process is whether a court will administer the closing up of your financial affairs after you pass away. A probate court will determine whether or not a will isn't an existence for you by examining any documents submitted to it and going through a list of criteria to determine whether or not the will is valid. Most property or assets will be controlled by your will in are termed as probate assets. You will know that the probate process is complete when the probate court will distribute those assets amongst your beneficiaries, creditors, or anyone else who has an interest in your estate.

Your spouse or another person can apply to have you will probate once you pass away. Probating a well is usually necessary if you have creditors who need to be paid, property that needs to be collected by their persons, or assets that need to be distributed to beneficiaries like relatives. An application to probate your will and issue letters testamentary must be filed with the probate court to begin the process.

You would file that application with your County clerk, and whoever is the executor's name in your will apply to the court requesting to admit your will to probate. A Texas Estates code allows any person who is classified as an interested person to apply, however. Typically, an interested person would include heirs, spouses, creditors, and anyone else having a claim against your estate that is being administered.

Once the application to probate your will has been filed, the court clerk will provide notice to all parties having an interest in your estate to appear in court if they wish to do so. Once a hearing is held that probates your will, your executor will present proof to the court that you have passed away and a valid will in place. A judge will probate the will after it is admitted and then formally appoint the executor to your will. Documents called letters testamentary will be issued to your executor that gives them authority to settle all your estate assets.

Typically, the executor is named in your will to make an application for probate with the court. However, any interested party, such as those mentioned above, can also apply for probate to the court. A court can issue letters testamentary to a wide range of persons, including the executor to your will, your surviving spouse, a beneficiary under your estate, a creditor of yours, or any person who applies to be able to administer your will which is of good character.

How much does it cost to go through the probate process?

One issue that we have not discussed at all so far in this blog post is the actual costs associated with going through the probate process. Fully probating a will can be costly and timely, but Texas has a fairly simple process to follow compared to other states. The city taxes follow an executor or administrator of your will to serve independent of the court supervision. This is otherwise known as an independent administration. This policy aims to make it more efficient and require less oversight by the court.

On the other hand, dependent administrations require an administrator or executor post to bond and obtain approval from the court for any actions to administer an estate. The bond will require that the money be paid to an insurance company that will protect the estate's beneficiaries if the executor does not follow the terms of your will. As you might imagine, this step in the process increases the overall costs and time required for a case to complete.

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 consultation six days a week in person, over the phone, and via video. These consultations can be a great way for you to learn more about the estate planning process and how your family circumstances may be impacted by the passing away of a loved one.

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