To settle an estate without a will is more common than you may think. However, if you possess an estate that is larger than most then you need to know that the process can take longer to complete. This can impact both the value of your estate and the people who stand to benefit from your estates- such as heirs and beneficiaries. For that reason, you should pay attention to the details and learn as much as you can about how to settle your estate in the most efficient manner possible. Doing so will provide you with peace of mind during your lifetime and can greatly benefit the people in your life once you pass away.
What does it mean to settle an estate?
When you pass away your assets must be distributed among your heirs, beneficiaries. There are two ways that this is done in Texas. The first would be for you to draft a document known as a will. The last will directs someone, named as an executor in your will, to distribute assets and pay creditors (if any) once you pass away. The will must be signed by you before your passing, be notarized, and witnessed by two people.
On the other hand, if you pass away without a will then you would die intestate. Intestate is just a fancy legal way of saying that you passed away with no will. In that case, you would still have an estate that needs to be handled after your passing. However, instead of a will dictating where your property is and asking that's with the flow too after you pass the state of texting in who and what can inherit your property once you pass away. The Texas probate code, as overseen by a county probate court, will determine and dictate how your assets are distributed. This is the estate settlement process.
What are the steps to settling in a state in Texas?
Like any other process in the legal system, there are steps that the administrator of your estate or the executor of your will needs to follow to settle your estate. The first would be to file the will for probate or two files a probate case so that the probate court can begin to oversee the process. There is no legal way to settle an estate to distribute property other than to go through a Texas probate court. In this way, you can be sure that property is distributed correctly and creditors, if any, are paid in full and on time.
Next, the executor of a will or the administrator of your estate needs to gather, record, and identify all the property in your estate. Sometimes you will have an advanced warning can have an opportunity to do a lot of this work for your executor or administrator. For example, before your passing you could work with the executor should begin to organize your property. This can be a great help we can save the executor a great amount of time and money. Note that any money that must be used to perform these steps involved in your case will come out of your estate. Meaning, there is less money in planning for your beneficiaries to be distributed property the more time it takes to probate your will.
The step in this process that involves gathering assets gets most of the attention from the people involved in your case. However, creditors of yours have a role to play as well. If you owe any creditor money those debts will need to be handled and paid before your beneficiaries can receive any property under the will. Once your will is accepted into probate the executor in the court and provide notice publicly of your passing in the will being accepted into probate. Then creditors will have a certain period that they can attempt to intercede into the probate process in an attempt to collect property and satisfaction with their debt.
Once this step is complete and creditors have been paid the executor or administrator will have an opportunity to distribute the remaining assets of your estate to your family, beneficiaries, or heirs. In the probate court, we'll make determinations how much property to award to certain persons if creditors of yours take a substantial part of your estate. If you do not have a will the court may appoint an attorney at litem to seek out relatives of yours and to report back to the court as to whether you have heirs who can receive property. Otherwise, your property would escheat to the state of Texas.
The final step in settling an estate in Texas is to either terminate or close the estate. This means that the administrator or executor could close the probate case and certify that all creditors and beneficiaries' distributive property. At that point, the case would be over, and the administrator or executor's responsibilities would be complete. these are the basic steps that will be taken after your passing to settle your estate.
What to do if you are the executor or administrator of an estate?
Now put yourself in the shoes of a person who either has been appointed as the administrator of an estate or as the executor under a person's will. If you find yourself with this responsibility, then knowing the above steps is crucial to being able to fulfill your responsibilities. You can start by reviewing the Texas probate code and by filing the will or the estate with a probate court where your deceased person resided.
From there, having a probate attorney to assist you in this process is an incredibly important resource for you to have. This is true regardless of whether you are the administrator of an intestate estate or the executor of a loved one's will. An attorney who specializes in probate law will be able to work for you to ensure that the probate process proceeds in a timely fashion while voiding delays and costs that could otherwise be avoided.
How is an estate settled if there is no will in existence?
If you plan on not drafting a will, let me take a second to recommend that you do draft a will. It does not cost a lot of money. It does not take a lot of time. The benefit to your loved ones can be tremendous. For those of you who are saying at this moment: but I don't want my family to get any of my money! I dislike all of them! That's ok! Why not donate money to your church, school district, alma mater, or any other group or individuals? The will allows you to exert control over your circumstances. Why work your entire life to build wealth only to see the state of Texas determine where it all goes when you pass away?
Anyway, if you do not have a will when you pass away the person who is named the administrator of your estate has to go through some steps to get your money to the people to who the judge says it should go. First, the administrator needs to obtain a copy of your death certificate. This can take a while. If you have ever had a loved one pass away then you know how long this can take. Depending on the circumstances surrounding your death this can take anywhere from a few weeks to a couple of months.
Next, a petition for probate must be filed in the county where you resided. This is like filing a petition for divorce in a family court. The petition for probate is the initial filing into the probate court and will begin the probate process for your case. Unless your administrator is very familiar with this process it is recommended that he or she hire an attorney to do this. In some circumstances, a probate court judge may even insist your administrator hire a lawyer due to the complexity of the case. A probate hearing will be held which is like a "getting to know you" type session. The judge will go over the case, the circumstances surrounding your death and will get a general idea of your heirs, assets, and debts.
Letters of administration will be issued by the probate court as soon as your administrator’s petition for probate is granted. The letters of administration give your administrator the legal authority to act on behalf of your estate. Acting on behalf of your estate means paying creditors, determining the whereabouts or existence of heirs, and then inventorying dividing property according to the judge's reading of the probate laws of Texas. Your administrator will pay your debts and any taxes owed. Final distribution of your property will occur once the administrator is paid and all court costs are accounted for. Finally- the estate will be closed once all of these steps are attended to.
When it comes to being more straightforward, not having a will means that a judge will read the Texas Probate Code and then divide your property up according to how he or she reads the code. This is somewhat "paint by numbers" in that the judge reads the law, looks at your family tree, and then divides up property based on what the law says he or she must do. It can become more complicated if you have family coming out of the woodwork or a complicated family tree of some sort. However, for the most part, dying without a will means that the judge applies the law and that is that when it comes to your estate.
However, there may be circumstances in which dying without a will can be more complicated for the probate court judge. Imagine if you were to pass away without a will while owning a large piece of real estate. If none of your heirs want to take that property a probate court judge may need to order that the property be sold by the administrator of your estate. The funds from that sale could be divided up between the children or heirs once the property is sold. This is an extra step that would not have to go into place if you would have died without a will. The contents of your will would have been followed as closely as possible. Unless your will specifically instructed your administrator to sell the property the court would not have to wait for this step to be completed.
What are some of the downsides to settling an estate without the assistance of an attorney?
We have already spent time discussing why it is beneficial to have an attorney if you are proceeding as the administrator of a person's estate. However, I would like to close out today's blog post by covering some more specific reasons why doing so is a great idea. Of course, the situation you find yourself in maybe incredibly straightforward and not at all complex. However, odds are that something would happen during the administration process that could throw a wrench into the issues associated with the case. When that happens you need to rely upon someone with experience handling issues like these. If you lack this sort of experience then you may have a problem on your hands.
Settling an estate with no will can take a significant amount of time. Significant in this instance can mean more than a year. The size of the estate in question, the assets, debts, and the type of creditors can all have an impact on the ability of the estate to be administered correctly. One of the common ways that an estate being settled can take longer is if you own multiple parcels of real estate. Whether the property needs to be sold, whether a judge needs to determine if there are liens on the property, or if there are any other issues associated with it- owning property can take a great deal of time to process for those involved with settling an estate.
Any business interests that you own would still need to be administered and overseen before the closing of an estate. These business interests can be complicated in that you may own a portion of a business that was purchased during your marriage. The money used to purchase that stake in the business may need to be traced to determine if it was community property or separate property. What happens with the business and whether or not your spouse wants to keep that stake can impact how long it takes your estate to be settled.
Next, if you own any high-value personal assets then you can be sure that this will cause the estate to take longer to settle. The more high-value items that you own the more careful a probate court judge will be to distribute them correctly. Higher value estates require more time for a judge to oversee them, as well. Any inventory and appraisement of the property in question will need to be thorough. The judge may request multiple experts come in and oversee the process of valuing these pieces of property.
Whether you were married or had been married at one time will impact the settling of your estate. The probate laws of Texas hold that surviving spouses stand to inherit property from you- specifically community property. A surviving ex-spouse may be able to make similar claims to property of various sorts depending upon the nature of the property and the timing of when the property was purchased. Bear this in mind as you begin to consider how important it is for you to have a will. Setting up a will can make a huge difference in this discussion.
By the same token, how many children you have, stepchildren or adopted children can factor into the discussion of settling your estate without a will. Each of these groups may be able to make arguments that can impact how a probate court judge ultimately divides and distributes property. Remember how we talked about earlier how your family tree can impact the division of the property? This is what we are talking about. If you have a complicated family tree it can take longer to track down these relatives.
Finally- one point that I would make is that you have no control over when you pass away. We can control some factors like our health, where we live, our occupation, and things of that nature but we can't prevent random occurrences like motor vehicle or household accidents. These are things that we can't prevent from happening. All we can do is set ourselves up properly to ensure that these issues do not impact our estate planning. Since we don’t know when our time will come it is better to get your will ready now and be prepared as much as possible.
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 and 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 estate planning and to prepare yourself and your family for any circumstances related to this subject that you may encounter.
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