What You Should Know About Probate
One of the biggest mistakes we see is with a husband and wife. Typically, a husband and wife prepare Wills leaving each other everything. When one spouse dies, the surviving spouse thinks probate is not necessary since they receive everything. This is not necessarily true. The children are often faced with having to address both estates rather than one. Sometimes it isn’t the spouse but the children. Maybe it is the size of the estate or too many creditors. If you do not probate the estate, many issues may arise.
Types of Probate Proceedings
Certain factors determine the type of proceeding necessary with regard to probate. One of the biggest factors is whether a person died with a will or without. If the Decedent left a Will, you may need to obtain Letters Testamentary. Letters Testamentary is a document that gives notice to others of the name of the Executor. This document shows that an Executor has the legal authority to act as such.
Letters of Administration (Independent or Dependent) is typically where a person died without a Will and an individual is named as the Administrator. Depending on the County where the probate is initiated, some require a Determination of Heirship to be included in an administration. With an heirship proceeding, the Court will sign an order that actually names the heirs of the Estate and their respective shares.
If the Estate is small, it may qualify for a Small Estate Affidavit. In order for this to apply, the individual could not have died leaving a valid Will. In addition, the Estate’s assets should exceed the liabilities and the value of the assets cannot exceed $75,000. This amount is excluding homestead and exempt property. If these apply, then the Estate could qualify for a Small Estate Affidavit.
There are times when only an Affidavit of Facts Concerning the Identity of Heirs is necessary. Whatever your needs are, we are here to help ease the burden. Contact us to assist you during this difficult time.
Hiring a Probate Attorney after a Death in the Family
No matter how “expected” a loss may be, it is never easy. Regardless of your faith and belief system, losing someone hurts. We understand death is inevitable, but it does not make it any easier. You need to be able to focus on your family’s needs during this time, not worrying about how to probate the Will. Let us worry about the details, while you concentrate on your family.
Depending on the size of the Estate and the type of assets owned at death, it may not be necessary to probate the Estate. There are several types of probate proceedings in Texas and each proceeding has different rules. We can advise you as to the best proceeding to meet your specific needs and requirements. Whether it is obtaining Letters Testamentary, probating a Will as a Muniment of Title, preparing a Small Estate Affidavit, or just filing Affidavit of Facts, we can handle the Estate no matter what the size.
I Have Power of Attorney – Can’t I Use That to Transfer Assets?
NO! Powers of Attorney are great tools if used properly by the Principal and the Agent. However, a power of attorney is only effective until a person dies. At death, the authority under a power of attorney expires. This is where the probate process comes in.
What Is Probate?
Probate is the term used to describe the legal process of winding up the affairs of a person who has passed away. The process is dependent upon whether a person dies with or without a Will. If a person dies with a Will, they are said to have died “testate”. If, on the other hand, a person dies without a Will, they are said to have died “intestate”.
The probate process is also dependent upon the assets owned at death, and whether those assets pass according to the Will or subject to administration, or if they pass outside of probate. Probate assets are any asset titled in the Decedent’s name, either individually or with co-owners, that do not have a designated beneficiary, pay on death, or right of survivorship. Non-probate assets are typically those assets with named beneficiaries, such as life insurance policies, investment accounts, IRAs, joint accounts with right of survivorship, or any account with pay on death designations.
Is Probate Necessary?
The answer to this question is, it depends. Sometimes probate is not necessary. An experienced Probate Attorney should be able to review the assets of the Estate and determine the most efficient, cost-effective way to transfer the assets from the Decedent to the beneficiaries or heirs. Perhaps the only asset in the Estate is a house. In this case, one of the options in probating an estate would be as a Muniment of Title. This proceeding is generally quicker and less expensive than obtaining Letters Testamentary.
What Should I Bring to My Appointment?
Before you meet with a Probate Attorney, you should try to locate an original Will if the Decedent had one. Although it is possible to probate a copy of a Will, it is better to locate the original and bring it with you. In addition, you should try to gather as much information on the Estate as possible. This does not mean you need to have all documentation, but you should have an idea of the types of assets the Decedent owned and possible debts outstanding. One way to gather this information is to go through the Decedent’s bank account statements, check book, mail, and credit card statements. Bring as much information you can to the appointment, along with the original Will.