Simple Steps of Probating A Properly Drafted Will in Texas
– A service offered for a FLAT FEE by Cynthia Fronterhouse FILING THE APPLICATION FOR PROBATE WITH ORIGINAL WILL When you lose a loved one, the original will is filed with the proper court. An application asking the court to appoint the executor listed in the will is filed with the court. After filing the will, the clerk of the court will post a notice at the court advising all interested parties that the will has been filed. The notice must remain posted for at least 10 days. The purpose of this waiting period is to give those who wish to contest a will time to do so. If no one comes forward to contest the will, the courts will move forward with confirming the will’s validity. However, a will can be challenged at any time after the will is offered to probate and up to two years after a will has been admitted for probate. HOLDING A HEARING A hearing is held before a probate judge. During this hearing, the judge will recognize the decedent’s death, confirm that the individual applying to be executor is qualified and verify that the will is valid. Once the hearing is complete, the judge admits the will to probate and appoints the executor. The clerk then issues “letters testamentary” to the executor, which serve as notice to third parties that the executor has authority to act on the estate’s behalf. INVENTORY, APPRAISEMENT AND LIST OF CLAIMS The executor now has the responsibility to inventory and appraise the deceased person’s estate within 90 days of the hearing. These responsibilities include notifying beneficiaries of the will, posting a notice to creditors, discharging debts, filing the decedent’s final federal tax return, and otherwise settling the estate. The executor may also be responsible for selling estate assets. Attorney Cynthia Fronterhouse can assist with many of these duties for a Flat Fee.
Read moreIs your will valid?
Is your will valid? To make a valid Will in Texas, you must have legal capacity, testamentary capacity, testamentary intent and certain formalities must be followed. If a Will does not meet all of the requirements set forth by the statutes, it will be declared invalid, meaning that your estate could be distributed according to a statutory formula rather than the way you would have preferred. Dying without a Will – The Complexities of Texas Intestate Laws Without a will you have no choice as to who will administer your estate, who will be the guardian of your minor children or the custodian of the estate of your minor children, or who will receive your property in what proportions or when. WHAT TO DO IF YOU NEED TO PROBATE A WILL. . .One of the biggest concerns for people contemplating the probate process is the expense required in fully probating an estate. Luckily, a properly drafted Will simplifies the probate process. Independent administration in Texas allows Executors and Administrators to serve largely independent of Court supervision. As a result, the probate process in Texas is streamlined and efficient. WHAT TO 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 at the death of the first spouse. 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 full title on the house into the surviving spouse’s name. REMEMBER: Texas Probate Code only provides four (4) years to probate a Will. After four (4) years, all heirs must be notified of any attempt to probate a Will, timely and costly. Learn more about our will and estate planning services.
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 to decide. 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. When you are choosing a guardian, make sure you choose well. Here are some items to consider when you are choosing a guardian: Religious preference: If parents have specific wishes about their child’s spiritual practices, this is a conversation to be had with the guardians they appoint. Physical ability — now and later: This is especially an important case with children who have special needs who may require more continuing care as they get older. Emotional stability: Your 22-year-old artist brother who sleeps in a lot may not be ready for this. Location: If your sister in California is going to get the kids but you live in New York, is she supposed to come live in your house or would the kids move to her home in California? Does she live in a good school district? If your chosen guardian’s location would mean uprooting the children, don’t leave these questions to surviving family members to figure out on their own. If your appointed guardian lives outside the United States or even a time zone away, it’s especially critical to consult a lawyer, as different states have different laws about moving minors out of state. A deep bench: If the person is unable to care for your child, who is the back-up choice? If the person you chose to care for your child is unable or unwilling to become a guardian and you haven’t named an alternate, the court will select a guardian. Financial responsibility: There are two types of guardians of a child: the legal guardian — who has physical custody of the child, kisses boo-boos and signs permission slips — and a fiduciary guardian, who manages the deceased parents’ finances set aside for the child. The fiduciary role may be played by a conservator (sometimes used by courts in lieu of a guardian), personal representative, attorney-in-fact or custodian if there is not a trust and a trustee. It’s not necessary to divide the two roles, but it’s an option if you have concerns about your legal guardian’s money management skills or your fiduciary’s care-taking skills, or if you want to ensure a larger team of people is responsible for your child’s well-being after your death. If you do name a fiduciary guardian, make sure it’s someone familiar with your child’s needs and lifestyle so that there won’t be tensions over whether horseback-riding lessons are a luxury or an important source of comfort and consistency for a bereaved child. Teamwork: Will your physical guardian and fiduciary guardian work well together? If you do divide the roles between financial custody and guardianship, it’s important to consider whether the two parties will get along and work together for the sake of your child. Ask permission before you appoint someone to these important roles. As always, open lines of communication are critical to finding the best […]
Read moreAre You a Blended Family? What Happens to Your Property If You Die Without a Will?
If you have a blended family, your property may be distributed in ways that you do not intend. To show what happens, let’s assume Mommy Shark and Daddy Shark have one baby shark together. Daddy Shark had one baby shark from a previous marriage. When Daddy dies, he leaves behind the following assets: A home that Mommy and Daddy bought together after they got married and still live in it. A flower shop with commercial property acquired during their marriage. A lake house which Daddy owned before he met mommy. A bank account worth $200,000 to which both contributed for their retirement. The home in which they lived is community property. But because daddy has a child from another marriage, Daddy’s half share of the house will pass directly and equally to his 2 children. Mommy will retain the right to live in the home during her lifetime and retain her half ownership in the home. The flower shop and commercial property are classified as community property. Daddy’s half share of the business and commercial property will pass directly and equally to his two children. Mommy will keep her half ownership in the business and commercial property. Mommy will now run the business with her child and stepchild. Did she want partners in this business? Since Daddy owned the lake house before he met mommy, it is classified as separate property. All of the lake house will go to the children but Mommy will have a one-third life interest in the property. he may not have unlimited access to the lake house as she once did. What will happen to the bank account they saved for their retirement? It will be split in half, Mommy will retain $100,000 but the rest will be split equally between Daddy’s two children. Will Mommy have enough to retire now? If you find yourself in a similar situation or to avoid issues like these, contact us.
Read moreDying without a Will
Who Inherits When A Married Person Dies Without a Will in Texas? Many Texans think that the surviving spouse will inherit all of a deceased spouse’s estate if there is no will. This is NOT always the fact. Here is how the property will be divided. Community Property Texas has a a presumption that all property acquired during a marriage is community property. Under Texas laws, when a spouse dies and all of the deceased spouse’s children are also the surviving spouse’s children: The surviving spouse will inherit all of the deceased spouse’s community property. This will happen only IF ALL children are also the children of the deceased spouse. Under Texas laws, when a spouse dies and the deceased spouse has children that are not the children of the surviving spouse: The deceased spouse’s one-half interest in the community estate will pass to that spouse’s children and the surviving spouse will keep his or her one-half interest in the community property. Homestead Real Property The surviving spouse will have a life estate in the homestead. This means that the surviving spouse will have the right to use the property until his or her death. If the deceased spouse does not have any children, then the surviving spouse will inherit all of your community property. Separate Property Separate property is property that you owned before marriage, or acquired, even during a marriage, by gift or inheritance. The intestate distribution formula is different for separate property: If you are married and have children, the personal property and real property are handled differently. Personal Property The surviving spouse and children will receive one third of your separate personal property. Real Property The surviving spouse will only receive a life estate (the right to use the property until his or her death) in one-third of your separate real property. The surviving children inherit the remaining interest outright. If you are married but don’t have children, your separate personal property will be distributed to your surviving spouse . However, if you have surviving parents and siblings, your surviving spouse will receive only one-half of the separate real property. The other half will pass to your parents, siblings or descendants of siblings according to a statutory formula. If you want the freedom to decide how and to whom your property will be distributed when you die, you need a will. For assistance creating a will or updating one that you may already have, please contact Cynthia Fronterhouse of Nimmons & Fronterhouse.
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