What is Probate?
When there is a will… probate is the legal process whereby a will is authenticated in a court of law and arranges for the distribution of a person’s estate. Texas offers some of the simplest probate options, allowing families to quickly conclude personal and financial family matters with dignity. If the will is uncontested and the estate is not large or complex, probate can be a routine procedure, where a judge verifies the documents and releases the estate to be transferred. However, if there are disputes, questions about the validity of the will, no beneficiaries are named or the appointed executor does not want the job, probate can become a lengthy, complex and expensive process. After the executor is appointed in the hearing before the judge, below are a few steps that must be completed. The assets will need to be tracked down and inventoried. Non-cash property must be appraised and sold, if necessary, to settle debts and pay taxes. Once the financial obligations are fulfilled, the remaining property is divided according to the will’s instructions or the court’s order. When there is not a will… probate is whereby the estate is settled according to the laws of intestacy in the state of residence of the deceased at the time of death in the absence of a legal will. When a person dies without a will in Texas, their property will be distributed under Texas intestate law. This typically means that heirs will have to go through the Texas Probate Courts to determine who the proper heirs are and to settle the decedent’s estate. This is called a Suit to Determine Heirship. What is a Suit to Determine Heirship? If there is not a will and the estate is worth more than $50,000 (not including the homestead and certain non-probate assets), it may be necessary for a court to determine who the heirs are according to Texas law. The judge will appoint an attorney ad litem to represent the interests of potential or unknown heirs. A hearing will then be held and two disinterested witnesses and the attorney ad litem will give testimony. The Heirship Proceeding is generally more expensive than probating a will and can become expensive, if there are many heirs, minor children or complicated business or real estate assets in the estate. For more information on wills, probate, handling a suit to determine heirship or another estate matter, contact Cynthia Fronterhouse .
Read moreWhat You Need to Know about Wills and Probate in Texas
Attorney Cynthia Fronterhouse shares the key things you need to know about wills and probate in Texas. There are four estate planning documents that every adult in Texas needs to know. Those include: A last will and testament appoints a guardian and establishes a trust. A durable power of attorney appoints an agent to manage your finances. A medical power of attorney appoints an agent to make healthcare decisions on your behalf, if you become unable to do so on your own. A directive to physicians instructs physicians not to use artificial methods to prolong your life. If you have a will and die in Texas, probate is a simple process to distribute your assets. Most Texas wills direct the named executor to pursue independent administration. Independent administration in Texas allows executors and administrators to serve largely independent of court supervision. This means that the executor does not have to post a bond and does not have to ask court permission before taking many steps to settle the estate. Is your will valid? To make a valid will in Texas, you must have a legal capacity testamentary capacity, testamentary intent and certain formalities must be followed. If a will does not meet all the requirements set forth by the statutes, your will unfortunately will be declared invalid, meaning that your estate could be distributed according to statutory formula, rather than the way you would have preferred. What should you do if you are the surviving spouse? In order to ensure that all estate property is fully and efficiently distributed, it is recommended that the surviving spouse probate the will when first spouse dies. Community property residences are generally owned as tenants-in-common. Thus, if the surviving spouse later attempts to sell the home, some form of probate or estate administration must be initiated to transfer the full title on the house to the surviving spouse’s name. If you die without a will, Texas law lays out how the state will be distributed. The disadvantages of dying without a will are many. You don’t determine how your property is distributed. The court will decide who will be the guardian of your children. Your pets may not get the care that they deserve or that you wish for them. It’s a more expensive proceeding if there is no will. You may not get the funeral that you wanted. Remember: The law provides four years to probate a will. After four years, it is costly and timely to do so. Handling of Your Executed Estate Documents Copies: Except for your will, it is always a good idea to have several copies of these documents and keep them at various locations. This ensures that those persons who are helping you will have easy access to the documents they will need, if your health deteriorates. Please note: If you are making additional copies of these documents, please do not unstable the original. Instead, use a copy to make additional copies. Medical power of attorney: Please give a copy of this document to your physician to be included in your medical records. If you are an outpatient at […]
Read moreSeminar on Wills and Estate Planning in Houston
Wills & Estate Planning Seminar Choose from three dates: Tuesday, June 23, 11 am – 12:30 pm Wednesday, July 8 from 6-7:30 pm Thursday, July 9 from 2-3:30 pm Join us for a Free Seminar on Wills & Estate Planning in Houston. Location: Trini Mendenhall Community Center at 1414 Wirt Rd, Houston, TX 77055 Topics: Is your will valid? Who can manage your finances if you cannot? Can your family make healthcare decisions on your behalf? How do you make sure your doctor follows your wishes?Every attendee will receive a FREE guide on “Five Estate Planning Documents Every Adult in Texas Needs”. Learn more about this Houston-based attorney and why you need to write a will that protects your interests and those of your family. You may also be interested in learning more about how a will is probated. Contact us at 713-467-1760 to reserve your spot at this free seminar in Houston.
Read more5 Top Financial Things To Do For A Second Marriage
1. Full Disclosure Before you get married, you and your fiancé should discuss all aspects of your financial situations with one another. On a piece of paper, write down your: Credit History. Have you ever been late on payments, or had any judgments against you? Have you ever declared bankruptcy? Debts. How much do you owe to credit cards? What other debts do you owe? Assets. Include your annual earnings, the value of your home, cars, investments, and retirement plan funds. Obligations under a previous divorce decree. Make sure your intended is aware of any child support or alimony payments you are required to make (including how much), as well as any disability, life, health or long-term care insurance that your settlement says you must keep in effect. You should also let your partner know if your ex-spouse has rights to any of your future retirement plan earnings. When you’re done, exchange papers with your fiancé. Expect your answers to trigger discussion about who is responsible for debts incurred before the marriage, whether you will share assets earned by one of you, and how you will meet financial obligations from a previous marriage. Your next step is to consider drafting a prenuptial agreement. A “prenup” is especially important if you 1) are bringing significant assets into the marriage, 2) expect to inherit a business or other assets in the future, or 3) have children from a previous marriage. 2. Protecting Your Assets Typically, those who remarry are older and wealthier than the first time they married. As such, you often have more interest in protecting assets you bring to the marriage. Many high-earners also are interested in protecting assets they’ll earn during the marriage. A prenuptial agreement will ensure that your assets will remain separate from your spouse’s, and that the spouse cannot claim a portion of your assets if you divorce. 3. Protect Your Children Prenuptial agreements also can be useful if you have children from a prior marriage and want to ensure that your assets pass to them when you die. Generally, unless your spouse specifically waives his or her right to the assets in a valid agreement, he or she may claim a portion of your estate when you die. Take John, for instance. A successful internist, he was 45 years old when he married his second wife, Melanie. To protect his two children from a previous marriage, John established a trust and named the children as beneficiaries. That way, the $2 million in assets he’d earned before his second marriage would go to the children when he died and not to Melanie. But John’s plan may be sabotaged if Melanie decides to sue for a share of the money when he dies. Virtually every state has a law that entitles a surviving spouse to a portion of the estate — even if your will or a trust says otherwise. If Melanie does not expressly waive her right to the money in a prenuptial agreement, John’s children could lose a third of their inheritance should she demand part of the money. If you’re like most, however, you […]
Read moreWho Will the Court Appoint as Guardian for Your Children?
If you die without a Will that appoints a guardian for your children, it will be left up to the Court . The Court will consider what is in the child’s best interest. It may not be who you would want appointed as your child’s guardian. There are certain people who are ineligible to be appointed as guardian according to the Texas Probate Code. These include: A minor; People whose conduct is notoriously inappropriate; An incapacitated person; A person who is a party or whose parent is a party to a lawsuit concerning or affecting the welfare of the proposed ward; A person indebted to the ward unless the person pays the debt before appointment; A person asserting a claim adverse to the proposed ward or the proposed ward’s property, real or personal; A person who because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling the ward or the ward’s estate; A person, institution, or corporation found unsuitable by the court; A person disqualified in a declaration made by the ward prior to incapacity.
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