Like any legal case, a probate case can't seem like an incredible frustration not only to you but to your family. Of course, having to probate a will or your estate means that you will have passed away. The irony to this situation is that the money in your estate will be used to pay for a court case that you stand to benefit nothing from directly. However, your family can stand to potentially lose or gain a great deal if you do not handle this situation well. The good thing for you and your family is that you can follow a roadmap towards solidifying your estate and preparing your family for life after you pass on- whenever that may be.
However, as with any legal matter, there may be hurdles that you have to jump over to accomplish these positive things for your family. For one, there are costs associated with probating your estate. This should not come as a surprise to you. Additionally, there are costs associated with hiring an attorney to represent your estate in this case. Depending on the circumstances of your situation, you can end up spending a great deal of time and money on a probate case.
Fortunately, you can avoid the protracted costs of a probate case by planning how to approach matters related to your estate. This is especially important if you become unable to attend to your affairs. As you age, the likelihood increases that you may require at-home care or even skilled nursing care. A lot of this depends upon your physical and mental health, and obviously, I don't have any idea how you specifically fare in those areas. However, the need for things long-term care insurance, retirement care, and other benefits increase as we age, no matter what our physical or mental condition is. This is a reality of aging that some of us tend to overlook for several reasons purposefully.
I think this is an important discussion for us to engage in as we pursue an answer to what assets must go through the probate process in Texas. Your property is a central component of any discussion on estate planning. As a result, you should be as knowledgeable as possible when it comes to understanding that certain pieces of property more than likely will have to go through probate. In contrast, certain types of property will bypass the probate process.
Once your will is filed in the county probate court, it becomes a public document. Legal notices notifying the public that your will has been admitted to probate will be published in a newspaper, magazine or any other widely read piece of media in the area where you reside. Once this is done, the administrator for your estate or your executor will likely have to begin to inventory and appraise the property included in your state. This would include your financial accounts like retirement and savings accounts. Even the value of your home and other property will be included in this inventory and appraisement.
Additionally, we have not even begun to discuss the effect tax orders have on your estate planning. If you owed debts, then those debts would have to be accounted for in the inventory as well because creditors have a right to be reimbursed as much as allowed under the confines of your particular estate. Meanwhile, all of this information becomes public knowledge and can be looked up by anyone with a computer or a desire to attend courtroom hearings; if your family is like most and would prefer to keep these sorts of aspects of your lives private, then you should be aware of what has two and what does not have to go through the probate process.
A word on children
If you have any children or grandchildren under the age of 18 and you will currently leave property directly to them, you have potentially put yourself in a very tricky situation. Not only does leaving money directly to children potentially place them in a world of harm, given that children are not well known in their temperance or prudence when it comes to spending money, but it is also important to note that the probate court may have a say-so regarding how that money gets to your loved ones. You may want to consider creating a testamentary trust inside of your will.
A testamentary trust allows for a property you want to go to minor children to be held in trust until your children or grandchildren reach a certain age. Many people choose that age to be 18, 21, or even 25. Meanwhile, you can specifically allow children under the age of 18 to receive money for milestone events, such as receiving a portion of the money to pay for college or a car when they turn 16 years old. You can either appoint a trustee to oversee the trust yourself, or you can name someone at a financial institution or another person to be a trustee.
In addition, the claims of any of their creditors may be attached to two assets of theirs or their spouses. This puts you in a position where your property may go to benefit accreditor before it even shows up on the doorstep of your children or grandchildren. Not putting property into a trust for minor children or grandchildren requires you to keep up with the goings-on of your children and grandchildren to a great extent. You would need to be sure of their willingness to spend money wisely, their status with creditors, and their ability to maintain these positions without putting this money into a trust. That is asking too much and involves you taking a major risk with money and property that you worked hard to accumulate over the years.
Finally, children can become disabled or otherwise unable to care for themselves or their affairs. If you pass away with a will in place that gives a great deal of property to a young child, there is no telling what may happen to that property if a conservatorship proceeding is successful in naming a conservator to handle their financial affairs even after they turn 18. Again, these are risks for you and your money that are not necessarily wise to take considering all of the circumstances of your life and theirs.
What happens if you recently moved to Texas?
One of the interesting aspects of this pandemic has been demographic changes and migration patterns of people within the United States. One such pattern has been people moving from other states to the state of Texas. Anecdotally, I have met people from other states who have recently moved to Texas more than once on my street alone. With that in mind, you may be reading this blog post as someone who had recently drafted a will while living in another state. The question you need to ask yourself is how effective a will from another state within the jurisdiction of Texas is?
The answer is not very effective at all. If you created a will in Louisiana and died in Texas, then it is likely that the laws of Texas will be used to dictate the terms of your will. This can be a worrisome thing for many people because you likely created your will, at least in part, based on the laws of your home state. If your home state is Louisiana, you should know that the probate and estates laws in Louisiana are significantly different from Texas's. As such, you and your family may be in for a rude awakening based on how the laws of Texas treat your will or treat your estate if you pass away without a will.
You may be thinking at this point: but having to create a brand new will and throw my old will in the trash can take time and money. While both of these assertions and beliefs are true to an extent, it is also expensive for you to pass away with a will in place that does not reflect your wishes at the time of your passing. At the same time, your family's circumstances may have stayed the same between the time you moved to Texas and when you lived in your old state; a significant circumstance did not remain the same. Namely, the place that will be probating your will changed along with the laws of the state.
A probate court will likely have to perform some degree of research into your home state's laws even if the will can be judged based on the laws of your home state rather than Texas. That's not to mention any additional paperwork that must be filed or completed to probate them willfully. Additionally, the paperwork associated with your will from your home state may not comply with Texas law and could need to be updated. Bear in mind that if you created a will online, you could not even be sure that the laws of the correct state are being followed.
Owning land in another state (not Texas)
Consider the situation if you were to own property in another state besides Texas. Again, let's suppose that you own some swampland out near New Orleans, where you grew up. That land has been in your family since you were a little kid and is extremely important to you not only for financial reasons but for sentimental reasons. You would like to make sure that that land stays in your family in the way you desire. Simply following the intestacy laws in Texas or Louisiana, for that matter, would not suit you all that well. What happens if you move to Texas without updating your will?
It is possible or even likely that your estate would have to be probated in multiple states, for starters. This means you may be looking at the time, cost, and confusion of probating your state in Texas as well as Louisiana. This problem becomes compounded if both you and your spouse died at the same time. Therefore, two estates may have to be probated in Texas, and two may have to be probated in Louisiana. No matter how you draw it up, this is a conundrum and can lead to confusion and, at the very least, delays and increased costs for your family to have to bear. Meanwhile, those costs are borne out of your state, so while your family doesn't have to pay for every court costs and fee associated with the probate process, your state becomes less and less valuable as time goes on.
Again, wills are crucial to our society in that they provide us with a way to more or less guarantee that our wishes will be followed at death even after we are gone. Rather than leaving it up to the state of Texas to determine how property is divided at the time of our death, we see to it that our families understand what our wishes are through the drafting and execution of a will. Despite the difficulties associated with drafting a will and executing on wheels, I think doing so is much preferable to leaving it up to Texas or any other state for that matter.
If you pass away without a will, you guarantee that probate will have to be attended to
The first step of a probate court is to determine whether or not a will exists for you after you have passed away. Even if you took the time to have a wheel created, you must have followed through with the requirements of a valid will in Texas, such as having two witnesses witness your signing of the document and having a notary present for all of the process. Without these steps haven't been followed, it is possible that what you thought to have been a validly constructed will is determined to be invalid or is at least challenged by a family member of yours who believes that the will is invalid.
If you can structure will towards the end of your life, there will also be questions about whether or not you are mentally competent to create and execute the document. This offers a unique situation for those who have Alzheimer's, dementia, or any other mental disease that eats away at your cognition over time. It may make sense; therefore, 2 encourage loved ones or even yourself to have a wheel drafted sooner rather than later before the onset of the worst symptoms of these types of debilitating mental conditions.
As alluded to a moment ago, if a relative of yours wants to contest the validity of your will, that is perfectly acceptable. They would file a lawsuit in the same probate court where your will is being probated. In some circumstances, we see people who have no right to do so attempting to contest a perfectly valid will. These may be extended relatives who are simply greedy and want a piece of your pie, so to speak. Other times, we see valid contests of wills from family members closer to you who have real concerns over the validity of the will or of your mental state when the document is drafted and executed.
Speaking of execution, if you have a will, you can designate and name a person in that document whom you would like to manage your state at the time of your passing. If you pass away without a will, on the other hand, you lose the right to do so, and a court would name someone as the administrator of your estate or you to die intestate or without a will. Again, having a will allows you to exact much more autonomy and control over your circumstances at death versus not having a will.
In closing, not only in the drafting of a will potentially dangerous through an online form, but you would not be able to receive any of the sort of advice that I just provided you with regarding the drafting of a will. A website cannot take the time and devote the energy to working with you on the finer points of estate planning or determining your specific needs. While going through a website is almost undoubtedly less expensive than hiring an attorney, you are not receiving any focused one-on-one treatment. As I am fond of telling people regarding estate planning matters, hiring a probate or estate planning attorney is a short term investment into your long term future period since the state planning's impact your family well beyond leaders which you are on earth you could say that it is a short term investment into an extremely long term future both for yourself 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 posts, 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 probate and estate planning law, as well as about how your family may be impacted by the filing of a probate case or by the drafting of a will.