WHAT IS ESTATE PLANNING?
Simply put, estate planning means making a plan for how you want to divide your property after you die. Part of estate planning is deciding in advance who should be in charge of your medical and financial affairs if you are unable to make important decisions for yourself. In addition to educating you about the estate planning process, I can assist you with the following tasks:
- Creating a will
- Designating your beneficiaries
- Establishing a durable power of attorney and medical durable power of attorney
- Finding ways to reduce and avoid estate tax when possible
- Finding ways to avoid the probate court process when possible
- Setting up trusts to protect your assets, both for your benefit during your life in the event of potential incapacitation as well as that of your designated beneficiaries in the event of your death
WHAT IS PROBATE?
Probate refers to the legal process in which a will is analyzed to determine whether it is valid or invalid. Probate can also mean the management of a deceased person’s will or the estate of a deceased person who doesn’t have a will.
Every will or estate plan must be submitted to a probate court upon death. This is the only way for a court to determine if the will is legally valid, and the only way to ensure that the choices made in the will are properly enforced.
PROBATE IN TEXAS
In Texas, there are two main forms of probate: independent administration and dependent administration of estates.
INDEPENDENT ADMINISTRATION OF ESTATES
Most of the time, the will directs the executor to enter into independent administration because it's quicker, simpler, and less expensive. If a will doesn’t explicitly call for independent administration (or if there isn't a will in place at all), the executor or administrator can ask the court for the authority to act as an independent executor.
Independent administration has several benefits and conditions:
- You do not have to post a bond (a bond is an insurance policy that protects the estate against losses caused by careless or dishonest actions by the executor)
- You do not have to ask for the permission of the court before taking steps to settle the estate, including paying debts, setting aside an allowance for the family, selling the estate’s property, or distributing assets to the designated heirs.
- Independent executors are still required to provide a public notice to creditors and file an official inventory of assets with the court, in addition to collecting and safeguarding the estate’s assets until they can be transferred to the new owners.
DEPENDENT ADMINISTRATION OF ESTATES
While it’s much less common, dependent administration is the other type of probate in Texas. Essentially, it turns over much of the decision-making power to the probate court.
THE PROBATE PROCESS
The State of Texas prides itself on its simple and efficient probate process. This is largely because most of the time, independent administration is enacted. What this does is give much of the control to an individual known as the “executor.”
An executor, also known as an administrator or a personal representative, is the person who administers someone’s estate after their death. If the deceased person left a will, then they will most likely name their chosen executor in the will. If there is no will or the decedent did not choose an executor, the probate court will appoint one.