ESTATE ADMINISTRATION: A Bare Bones Guide to Texas Probate PRESENTED BY: EVELYN L. GORDON, ATTORNEY AT LAW
Discussion Points What is Probate? What to do after someone dies? Do I have to go through probate? What are my options? Probate of Will Judicial Determination of Heirship Small Estate Administration Will as Muniment of Title Affidavit of Heirship Informal Family Settlement Alternatives to Probate Non-Probate Assets Avoiding a Full Estate Administration
Helpful Resources Lone Star Legal Aid www.lonestarlegal.org State Bar of Texas - www.texasbar.com Texas Young Lawyers Association Texas Probate Passport www.tyla.org/tyla/assets/file/38668texasprobatepassportwebready.pdf Today s PowerPoint Presentation www.egordonlaw.com
How the probate process works.
What is probate? wrapping up deceased person s financial affairs court-supervised process to transfer property gives notice to all potential beneficiaries and creditors determination of validity of a will if no will, determination of legal heirs distribution of decedent s assets to beneficiaries and creditors
When to probate? 4 years to probate a will, but should probate as soon as possible to avoid accumulating additional debts unfairly saddling one family member with expenses of the estate delays in transferring title to property
Starting the Probate Process Do I need an attorney? typically, yes Process begins with attorney filing an Application to Probate Will and for Issuance of Letters Testamentary any interested individual can initiate probate
What happens next? clerk issues citation and posts notice at courthouse court hearing held not less than 2 weeks later executor provides proof of will and decedent s death determination of whether will is admitted to probate order issued validating will and appointing executor executor takes oath court issues letters testamentary
What are Letters Testamentary? formal instrument of authority to act on behalf of the decedent s estate issued by the court Letters of Administration issued to court-appointed administrator when decedent died without a will decedent did not appoint executor of will executor appointed by will declines to serve
Who can serve as estate administrator? if no executor named in the Will surviving spouse principal beneficiary of the estate any beneficiary of the estate next of kin of decedent (nearest in order of descent) creditor of the deceased any person of good character residing in county incapacitated persons, convicted felons, and nonresidents of Texas cannot serve
Responsibilities of Executor/Administrator? gathering assets of person who died taking possession of all property cash assets must be kept in separate account preparing formal inventory or affidavit in lieu of inventory if no debts except secured debts notice to creditors paying debts of the estate claims presented while estate is still open tax returns (see form 706) closing the estate distributing remaining assets to those entitled to them
Priority of Claims Against the Estate funeral and last illness expenses, up to $15,000 family allowance for surviving spouse and minor children amount fixed by probate court expenses of probate administration secured claims if mortgaged property is sold and the proceeds are not required to pay the above items
Judicial Determination of Heirship decedent died without a will court determines the legal heirs all heirs must be notified and located typically most expensive and time-consuming form of probate may be necessary even if there s a will if no provision for residual estate no provision for lapsed or void gifts ambiguity in language of will
Small Estate Affidavit no will, and less than $50,000 in assets (do not include value of real property) real property requirements must have been decedent s homestead applicant must have lived on homestead with decedent affidavit must be signed by all heirs affidavit filed with probate court court issues order approving the affidavit
Will as Muniment of Title court order establishing validity of decedent s last Will certified copy of Will and Court s Order used to transfer title in any property to people listed in the certified Will Will and Order serve as new deed to any real estate no administrator required no outstanding debts best when mostly real estate [banks may not accept] only way to probate will more than 4 years after death of decedent
Affidavit of Heirship decedent died without a will and left only real property affidavit filed in deed records of county where property located signed by 2 disinterested witnesses stating that: they knew the decedent decedent died on a certain date in a certain county identity of decedent s family members and heirs decedent did not owe any debts at the time of his death witnesses do not stand to gain financially from the estate
Informal Family Settlement decedent only had personal items personal effects, furniture, etc. motor vehicles will require Affidavit of Heirship filed with county tax assessor
Dying Intestate Who Gets What? community property is all assets acquired during marriage, including salary, wages, income generated from community and separate property retirement or pension funds based on income earned during marriage cash dividends and income earned on separate property investments
Dying Intestate community property cannot avoid community property system through a will need written agreement to reclassify community property premarital property agreement; marital property agreement; or community property partition agreement
Dying Intestate quasi-community property out-of-state married person acquires property in non-community property state relocates to Texas Texas courts may treat as community property
Dying Intestate separate property is all assets acquired before marriage and gifts received during marriage inheritances received during marriage assets purchased with separate property settlement awards for personal injury separate property by written agreement
Dying Intestate Community Property spouse inherits ALL community property if no surviving children; or all of decedent's surviving children are also children of the surviving spouse
Dying Intestate Community Property children if all surviving children are not the children of surviving spouse, surviving children or their descendants receive decedent's 1/2 share of community property; spouse keeps their 1/2 share of community property and occupies the homestead for remainder of life
Dying Intestate Separate Property children separate personal property divided 2/3 to children or their descendants and 1/3 to the surviving spouse separate real property passes to children, but surviving spouse has life estate in 1/3 of real property, including right to live in, use, and enjoy property during surviving spouse's lifetime
Dying Intestate Separate Property surviving spouse, no children separate personal property to surviving spouse separate real property - 1/2 to surviving spouse; and 1/2 to decedent's parents or collateral relatives collateral relatives = siblings or their descendants if no collateral relatives, all separate real property passes to surviving spouse
Dying Intestate Separate Property surviving children and no spouse all separate personal and real property passes to the children or their descendants
Dying Intestate ALL ASSETS on hand at end of marriage are legally presumed to be community property until proven to be separate property by clear and convincing evidence a marriage ends at death or by divorce
Disadvantages of Dying Without a Will you may want spouse to receive everything, but spouse might only receive 1/2 of the community property and 1/3 of your separate property with will, can give spouse all or none of your separate property can give spouse portion of your ½ community property can pass unlimited amount to spouse free of estate tax
Disadvantages of Dying Without a Will if one heir has already received their intended portion of your estate prior to your death and you die without a will, that heir could receive an additional portion
Disadvantages of Dying Without a Will your assets could end up with those you don t want to have them if legal heirs cannot be located, your entire estate would pass to the State of Texas
Planning ahead to minimize the costs of probate.
ESSENTIAL PLANNING Last Will and Testament or Trust(s) As many Non-Probate Assets as Possible Designating Executor in Will to Serve w/o Bond Declaration of Guardian of Children Agent to Control Disposition of Remains Knowing How to Locate All Heirs
Application to Probate Will decedent left a will assets exceed $50,000 Determination of Heirship Small Estate Affidavit Will as Muniment of Title Affidavit of Heirship Informal Settlements mostly personal items Non-Probate Assets Right of Survivorship POD Accounts TOD Accounts Retirement Accounts Insurance Policies Life Insurance Trusts Living Trusts Court Procedures No Court Involvement
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