Wills And Probate
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It was Ben Franklin who said “The only sure things in life are death and taxes.” Both of these can have significant legal consequences. For most of us, the first time we ever thought about probating a will is when someone in our family has died. So what does it mean to probate a will? What about when there is no will? And why is it important? Here are some basic things to know about probating an estate.
Let’s Talk About Probate
"Probate” is a Latin term meaning “to prove.” Legally, a deceased person may not own property. The moment a person dies, the property is in a state of limbo. It must then be proven in court as to the rightful owners. In our legal system, probate is the process that legally recognizes a person’s death, proves whether or not a valid will exists and who is legally entitled to an inheritance, either according to the will or Texas law.
The probate court oversees the payment of the deceased person’s debts, as well as the distribution of their assets. The role of the court is to facilitate this process and protect the interests of all creditors and beneficiaries of the estate. This process is known as probate administration.
What If I Have A Will?
Having a will does not automatically transfer property. The will must be properly probated first. If the deceased has left a will, the estate is known as “testate.” To be valid, the will must have certain language, and it must have been properly executed by the testator and the witnesses.
According to Texas law, there must be at least two witnesses. The witnesses must be at least 14 years old, and the witnesses must see the testator sign the will prior to signing. At the time of the making of the will, the testator must be of sound mind. To be of sound mind, a testator must know the nature and bounty of their property, know their legal beneficiaries, know that they are making a will and must hold all these concepts in their mind at the same time.
The rules that dictate whether or not a will is valid are well settled in common law and are specified in the Texas Estate’s Code. In Texas, a will must be probated within four years of the testator’s death. If it is not probated within the four-year period, it is as if the will never existed.
Two Main Types Of Probate: Independent Administration And Dependent Administration
The easier and less expensive probate process falls under independent administration procedures. Texas is one of the few states that allow for independent administration, and more than 80% of the estates probated in Texas are independently administered.
In this situation, the court appoints an administrator who submits an inventory of all assets and a list of people who owe money to the estate. After the inventory is filed, the administration continues without the probate judge’s approval. According to Texas law, a decedent's will must contain specific language in order to qualify for independent administration. If the necessary language is not included, the estate will be probated according to the dependent administration process.
Dependent administration requires court approval for all actions taken by the administrator, which makes this process more lengthy and expensive. If the will is contested, then this will also usually trigger a dependent administration.
What If The Decedent Did Not Leave A Will?
If the deceased did not leave a will, then the estate must be probated as intestate. In that event, the decedent does not get to dictate who receives his or her property. The laws of consanguinity determine which heirs are entitled to inherit, based upon the relationship to the deceased. These rules are dictated by the state of Texas. The probate court will appoint an administrator to distribute the property accordingly. Without a will, the estate will likely be subject to dependent administration.
In The Probate Process, Someone Must Be Appointed to Administer The Estate
The court will appoint an executor if there is a will or an administrator if there is no valid will. Real and personal property are transferred to the people that are entitled to receive it, either through a valid will or according to the estates code. It is a process that takes time depending on the complications of the estate. In the meantime, creditors of the deceased need to be determined and bills need to be paid, which is a function of the administrator or the executor.
Non-Probate Assets
Certain assets are not subject to probate but are transferred some other way. These assets are known as non-probate assets. These can include life insurance proceeds that are left to a specific beneficiary, pensions, 401(k)s, bank accounts and any other asset that is transferred directly to the beneficiary. If all assets in an estate are non-probate assets, then the estate does not need to be officially probated. This is one benefit of having a Living Trust – to create non-probate assets and to avoid probate.
Finally, Why Is Making A Valid Will important?
- You can dictate who will receive your property when you die (as opposed to the state of Texas determining that for you).
- To ensure the less expensive and more efficient independent administration (as opposed to dependent administration).
- You can appoint guardians for your minor children.
- You can ensure that your pets are properly cared for.
- You can exclude certain individuals if you so choose.
- You can set up a contingent trust for minors who receive money or assets.
- You can make funeral arrangements in your will.
What Are The Dangers Of Pulling A Will Off The Internet Or Using Legal Zoom?
I have seen situations where people think they are prepared after having done a will on Legal Zoom when the documents they have are not adequate. Legal Zoom has a disclaimer that states, “We cannot guarantee that your documents are adequate for your particular situation.”
Further, it states, “We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies."
Every Estate Is Different.
Family, personal and financial history and what property is owned are all factors to be evaluated. Failure to file a probate in a timely manner can complicate the estate and make the sale of property much more difficult.
Contact Justice Law Firm at 817.421.0300 to schedule a consultation regarding probate and wills in Texas.
