Being appointed the executor of someone's estate is a tremendous responsibility. You have been named as the person whose role it is to execute the estate plan of another person after they have passed away. Not only are there legal responsibilities to engage in but also moral duties that you will likely feel that you need to uphold. In short, it is no small task to be asked to act as the executor of an estate and to ultimately accept that responsibility.
Going through probate means that you would have needed to have asked a probate court to grant you the authority to distribute assets to beneficiaries under the will. Additionally, if the person whose will you are acting as an executor under has any debts that need to be paid then those creditors have first dibs to receive payment before any beneficiaries. For many people who expected to receive money or property under a will, this can come as quite a shock. For most estates, even ones that have a will, it will be necessary to go through probate. While it can be time-consuming and somewhat expensive it is a way to ensure that you have fulfilled all your legal duties as executor.
I have run into situations where a person who has accepted the responsibility to act as the executor now is having second thoughts. If you find yourself in this position then I would recommend that you read along during the rest of today’s blog post. Even if you have other activities that you would prefer to engage in it is not wise to forego probate just because it seems easier or less stressful for you to do so. Rather, it would pay to learn about the challenges and consequences of not going to probate court and what that means for you as the executor of a person’s will and their estate.
Do you have a choice to go through probate? It depends
In most situations when you are serving as the executor of a person’s estate, it will be required for you to go through probate to abide by the law, the wishes of the deceased individual as well as the priority order of any creditors. For most people, it will be necessary to go through the probate process because most people have a degree of assets and/or debts that need to be acted upon. Very few people have no property and no debts. If you find yourself in a position where your deceased person's will lists no property or debts, then you may be able to avoid filing for probate.
In all other circumstances, you should understand that probate is the only legal way to transfer the assets of the deceased individual for whom you are acting as executor. Probate court provides the legal authority to change the name on the titles to vehicles, homes, and other assets if need be. Imagine a beneficiary of the deceased person not being able to move into or sell a home that they had been promised in a will because you did not go through the probate process. You place yourself in a position of liability for not having done so.
On the flip side, with all these types of property remaining in the name of your deceased person that means that his or her estate will incur penalties, taxes, and other costs associated with property in their name. Unless you are in a position to pay these bills yourself then you should work to ensure that title to these properties and assets can be transferred efficiently. Otherwise, these sums can build over time into large figures.
Another element to this discussion is that creditors in many cases will stop pursuing a debt or obligation after a person passes away. This is especially true if the creditor becomes aware of the reality that the deceased person's estate has no property and no means to pay them. In other words- do not be surprised if many creditors leave the estate alone once you begin the probate process. This can key them into the fact that your person's estate has no funds to pay them and that they had the best look to the next debtor for payment rather than trying to no avail to receive payment from your deceased individual's estate.
One of the key points to understanding how a will works is that you must be willing to execute the terms of your will- no matter what. Of course, there are limitations to this rule that center around working within the confines of the law. If the will asks you to do anything illegal then you should not follow through with that instruction. On the other hand, if your mother passes away and leaves all her property to your cousin then your role as her executor is to probate the will and pay your cousin their fair share. The failure to do so will result in extreme legal consequences.
A run-down of the consequences of not probating a will
The main purpose of acting as the executor of a person's estate is to be able to execute on the person’s wishes as contained in the will itself. If you are unable to do so then you may as well have not even served as such. With that said, if you do not go through the probate process then the deceased person's assets will not legally be transferred over to the heirs or beneficiaries. Keep in mind that you can physically transfer property to the people but that does not mean that you are doing so legally. If you transfer several pieces of property but have yet to pay creditors then you are going to run into some trouble. Going through probate means that you will be much more certain to have followed the law as far as doing what has to be done.
Part of the purpose of having a will is to be able to move property along when you pass away. This not only benefits the other people but it benefits the deceased person as well. Consider what happens if you are the executor for a person’s estate and you are being told to transfer property to their siblings after he or she passes away. If you do not go through probate and do not transfer the property not only are you breaking the law by not following the will but you are also causing the deceased person’s estate to incur taxes and fees associated with the property in the meantime. That money will need to be paid by someone before the property can be transferred especially if a lien is placed on the property.
Another aspect of not probating a will is that the deceased person’s creditors will have no clue that he or she has passed away. This is significant if only because they will continue to pursue the debts in their normal fashion. Sending letters, making phone calls and the like are appropriate as long as they are legal in Texas. However, they are not only unpleasant after a person has passed away but are unlikely to wind up getting them their money. However, the probate process allows you to notify any creditors of the deceased person about their passing in hopes of allowing them to come forward and attempt to collect on their loans.
Part of accepting the responsibility of acting as the executor of this person’s will means that you accept the responsibility if something goes wrong. Not following the plans laid out in the will as far as distributing property is a big “no-no.” Not only are you harming this person’s estate but also the lives of the beneficiaries. There are legal consequences for holding onto the will and not going through probate. Whatever expenses may be incurred by the individual’s estate or the heirs of the deceased person may become your responsibility.
The above paragraph is almost a best-case scenario. Consider that if you do not go through probate not due to lack of knowledge but out of wanting to benefit yourself somehow then you may be prosecuted for doing so. Putting your interests ahead of the deceased person is a crime in and of itself once it gets to the point where this is being done to benefit you financially. Rather than doing something like this, you should learn ahead of time what the consequences are so the thought won't even cross your mind.
Going to probate court- what to expect
Skipping out on probate court is not a great idea. This is the minimum that you should have learned by this stage of today’s blog post. With that said, let’s consider what it means to go into court for a probate matter like executing on a will. If you have never acted as the executor of a will before then you probably have no clue what to expect in a probate courtroom.
The will needs to be filed before going to probate. It is not a bad idea to file the will even if you do not need to go through probate. In that case, you would file the will and inform the court that your deceased person's estate has no property and therefore has no need to be probated. Otherwise, file the will along with the necessary court fees/costs to begin the probate process. The judge will need to refer to the will to interpret any portions that may be unclear or to ensure that you and the court are following the person’s wishes.
A situation that may be relevant to you that we have not discussed as of yet is what happens if you are not the executor of a deceased person’s will but know who is. If the executor does not come forward with the will to probate then you may be in a tough position especially if you stand to have property distributed to you. Is it possible for you to force the person’s hand in this case or are you in a position where you are stuck with not being able to receive the property that you are entitled to under the terms of this will?
In that case, you can file a petition with the probate court to compel the person to move forward and file the will for probate. The court can then force the executor or the person who has possession of the will to file and begin the probate process. Do not sit idly by and allow someone to essentially hold onto the property that is yours.
If we have not been explicit in defining what probate court is and what its purpose is, let’s go ahead and do so right now. Probate court is a venue where you can settle a deceased person’s estate by doing two things in particular: paying that person’s creditors and distributing property to their heirs or beneficiaries. The key to this discussion is that you want creditors to know what is happening so they can either collect under the terms set forth by the court or can leave the scene and stop trying to collect on their debts owed to them.
As we have already discussed, it is incredibly important for you to move property along for the deceased person. The slower this process goes the likelihood increases that you will have to pay expenses and fees associated with the deceased's account still owning them. This can and should be avoided by filing the will for probate as soon as you can, and then notifying creditors of the deceased's passing once given the go-ahead by the probate court judge.
You will then attend hearings in probate court on behalf of the deceased person. These settings will allow people who may wish to contest the will to do so. Someone may have an issue with your being named as executor under the will and the hearing will allow them to contest your formal appointment as executor.
Once all of the challenges are done and over with (if they ever were filed in the first place), the court will then need to establish that the will is valid. In Texas, there must be two witnesses who sign the will along with the person whose will it is. These folks will likely need to attend the probate court hearing to verify that the will is the same one that they witnessed having been signed previously. If the will is successfully challenged and/or found to be invalid, then the probate court will divide property amongst the person's heirs using the laws of intestate distribution in Texas.
A will would normally supersede these intestacy laws but if the will is invalid then these laws become very relevant to be aware of. If the deceased person is married then much of the separate property and all community property is transferred to this person (a life estate in the community estate, that is.) Children, grandchildren, parents, and siblings are other common sources of property transferred if the will is declared invalid.
Next, creditors of the deceased individual would need to be notified. They likely will be given a specific period by which they must state a claim against the estate of the deceased person. An important responsibility of the probate court will be to inventory and appraise the property contained in that person's life. Cars, homes, bank accounts are places where the court may look to when determining the number of assets you owe and what order they must go in as far as trying to satisfy the debts that you owed.
Most of the work that you do as an executor will be done outside of court. When you go to court you will do so for routine issues that do not involve much planning or drama within the courtroom. Mainly you are charged with acting as an executor in the initial hearing once approved by the court. Depending on the circumstances of your case, the judge may request a bond to protect the beneficiaries under the will.
If all goes according to plan you will not need to go back to court for some time. It may be months before you need to set foot again in a probate courtroom. Any other details of the estate can be tied up by you at this time. You will have been empowered by the court to act as a personal representative of the deceased person and have greater authority to act in this way than had you never attended probate court in the first place. Once the creditors have been paid and the tax bills are current then you will be able to distribute property.
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 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 probate and estate planning and also to learn how your family's circumstances may be impacted by the filing of a probate case.
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