WHAT IS PROBATE?
Jan. 11, 2021
Nationally, only about 32% of adults have an estate planning document such as a will or trust. Unfortunately, this means that a lot of people will be leaving their estate in the hands of a probate court.
Unlike many other states, the Texas probate process is fairly easy if a decedent had a will. If not, the court decides how to distribute the estate. Those decisions may not be what you would have wished. You are never too young to formalize a plan for your assets when you are gone. Doing so will give you and your beneficiaries some peace of mind.
For more than 30 years, Russell Manning Attorney at Law has helped clients in Corpus Christi, South Texas, and the Coastal Bend area explore their estate planning options and create plans that honor their wishes and preserve their legacies.
WHAT IS PROBATE?
Probate is the court procedure that validates or invalidates wills and oversees the administration of estates and guardianships.
If you die without a will, referred to as dying “intestate,” the court will determine how your assets are divided using the laws of intestate succession. Those loved ones you wanted to leave your possessions to won’t necessarily receive anything from your estate unless they are spouses, children, parents, siblings, or grandparents. If you intended to leave anything to someone else, they may receive nothing.
HOW PROBATE PROCESS WORKS IN TEXAS
There are multiple probate processes in Texas:
INDEPENDENT ADMINISTRATION OF ESTATES
This allows the executor named in the will to pay debts, liquidate assets, and distribute proceeds as specified in the will with limited supervision by the court. The estate does not have to pay a bond to insure against wrongful acts of the executor, and the executor does not need to ask the court for permission to settle debts and distribute assets. If there is no will, the court will appoint an executor and if all heirs agree, the executor may independently administer the estate.
This means the court supervises the activities of the executor. An executor named in a will can request dependent administration if they so choose. If there is no will and the heirs do not agree to independent administration by the court-appointed executor, the estate will be supervised by the court.
MUNIMENT OF TITLE
This provides a simpler way to transfer the decedent’s assets if there is a valid will. There must be no liens against the estate other than those secured by real property, for example, a mortgage. There must also be no Medicaid lien. An executor or heir can file the will with the probate court as muniment, or “evidence” of title. If accepted. all assets will be distributed as directed in the will.
SMALL ESTATE AFFIDAVITS
These can be filed with the court in lieu of opening a probate case if there is no will and the value of the estate is less than $75,000. Heirs can sign an affidavit attesting to the value of the estate and divide any assets if they agree on how they should be divided.
HOW TO AVOID PROBATE
Having a will does not avoid probate. Probate is required to validate a will and make sure debts are paid and assets distributed as specified in the will. Wills are generally less expensive to create than a trust because they are less complicated.
A trust becomes effective during your lifetime. They may be more complex and costly to establish because you must transfer the title of all real property, vehicles, investments, insurance policies, etc., to the trust. A trust provides for the distribution of your assets upon your death without requiring probate, which keeps the trust terms private. Wills, however, are public documents that allow the information of inheritance and estate details to be accessed.
One thing a trust cannot do is ensure the guardianship of minor children. A will is needed to express those wishes to be approved by the court.
HOW LEGAL COUNSEL CAN HELP
You can spend considerable time researching wills and trusts and attempting to figure out what you need to make sure your wishes are carried out when you are gone. Hiring an experienced estate planning attorney is well worth the investment. The attorney can assess your situation, your assets, and your wishes and explore all options with you. Once you decide what estate planning tools you want to use, your attorney can guide you through the process and create the appropriate documents that will stand up to challenges.
If you already have a will or trust that has not been revised for five years or longer or circumstances have changed, such as marriage or divorce, the birth or death of children, or the acquisition of assets, you should review and update your estate planning documents with an attorney.
At Russell Manning Attorney at Law, I have worked with dozens of clients creating or updating their estate plans in Corpus Christi, South Texas, the Coastal Bend area, and Bee, Kleberg, Nueces, Live Oak, Jim Wells, Aransas, and Victoria counties.
Take steps to ensure that your wishes are carried out when you are gone. Call my office today to schedule a visit.