Under Texas law, when someone passes away without a will, that is referred to as their having died “intestate”. (The word “intestate” simply means, “without a will.”)
Texas has laws in place as to how the property is distributed when a family member dies without a will. These laws make provision for the widow or widower, children of the current and former marriages, and generally makes provision for the bloodline or adopted heirs as to their rightful portions.
One of the first things to do is, of course, a thorough search for a will. Sometimes it’s in a safety deposit box, filing cabinet, or it may even be pre-recorded with the county clerk.
Should a will not be found, it’s a good idea to determine who should be the “Applicant” to the court in moving the process along to inventory and appraise the estate, deal with creditors and claims, pay taxes and distribute according to the court’s determination of heirship.
One of the biggest contingencies in this matter, is the value of the estate. There are laws to address the case of estates less than $75,000, with other qualifications.
For more information, call The Barrera Law Firm at (956) 428-2822 for a free consultation or fill in our online request form.
The probate process is not well understood by many but can have real effects on those that stand to inherit an estate at the time of a loved one’s death. If you do not plan your estate correctly, your loved ones, such as your dependents and spouse, could be put in a financially constricting situation at the time of your death. Not all estates are subject to the probate process. Living trusts, for example, can be created in order to avoid this process. Knowing about probate and how it can effect your surviving family members at the time of your death is an important part of being able to understand what you need to do in terms of planning your estate.
What is a probate and when is it necessary?
Probate is defined as the court-supervised administration of an estate. It is generally required for those whose estate has a fair market value of more than $100,000. Not included in the estate valued for probate is property that is being transferred to a spouse, trusts, or life insurance or retirement accounts for which there are beneficiaries, defined as those under contractual benefits. Probates are not dependent on whether or not a person created a will.
How long do probate proceedings typically take?
There is no easy answer to this question. The amount of time probate takes depends on the complexities of your estate. Typically, probate takes at least six months to complete, and that is under the best of circumstances. This is because the probate process includes required notices to be served, court hearing to occur and representatives to be appointed. In addition, a minimum of four months is required by law for creditors to present their claims against the estate.
What property is subject to probate proceedings?
The property that is subject to probate proceedings depends on how it is titled, the nature and value of the property and whether or not there is a surviving spouse. Only property for which a person held the title at the time of their death can be subjected to probate. Some people choose to create a living trust in order to put their property into. They then pass the title of their property onto the trust, which is not subject to probate. A good lawyer familiar with probate law, can advise you on the best way to plan your estate to avoid costly and time consuming probate proceedings.
Do inheritors receive income from the estate before the completion of probate proceedings?
While beneficiaries must wait until probate proceedings are complete before receiving the full and legal title to their inheritance, it is possible for them to receive a regular allowance before the proceedings are complete. In many cases, the surviving family members are in need of money from the estate in order to cover their daily expenses as well as expenses associated with the passing of their loved one. A lawyer can assist in petitioning the court for consent for payments for spouses and dependents before probate proceedings are complete.
No one likes to think about what will happen when death comes to them. However, legal planning is necessary so that in this event friends and family members will be able to make sure your wishes are followed. There are several types of wills that can be created, and depending on your financial portfolio and the depth to which you want to control how your estate is treated at the time of your death.
A will, as defined by Law, is a legal declaration in which a person, or a couple, names those they wish to transfer their property to at the time of their death. Wills can be written by an individual as long as they are over the age of majority and of sound mind. The age of majority is defined as over the age of 18 in America. Sound mind simply means that a person is rational when they create the will, or not clinically defined as insane or incompetent. Typically, however, an attorney is used to create a will. There are several laws that exist, different from state to state, that define rules regarding wills. For example, in community property state, a surviving spouse cannot be left out of a will. Using an attorney to create a will ensures that it is completely legal and that upon your death, your wishes will be carried out just as you dictate.
Living wills are those that a person creates to make known their wishes regarding life support and medical treatments in the case that they are left incapacitated and unable to make their wishes known. If you are involved in an automobile accident that leaves you in a coma and hooked up to life support, if you do not have a living will, your relatives will have to make the decision of whether to leave you hooked up to life support indefinitely or allow you to pass on without it. This can be an emotionally devastating decision for family members to make, and knowing your wishes through a living will makes the decision simpler and ensures your wishes are followed even though you cannot express them physically at the time.
A living trust is actually a mechanism that is used to hold and distribute a persons assets in order to avoid probate. A probate is a function of wills that involves a third party inventorying and appraising the property, and they paying debts and taxes accrued before distributing what is left over from the estate to the surviving family members. A living trust allows the entire state to be transferred to your surviving family at the time of your death without having to use a probate.
Advanced planning is the creation of a course of action, which you set down in legal form, in the case that you become ill and unable to plan for yourself. Some of the areas covered under advanced planning include estate tax planning, asset protection planning, business succession planning, planning for disabled or problem beneficiaries and creating a family or charitable legacy.
The Texas Probate Code outlines the law regarding what is needed to make a valid Last Will and Testament. It also covers when the Last Will and Testament takes effect and what one must do in order to pass along property after the person is deceased.
Code says when wills can be revoked or be superceded
It also outlines the circumstances when a Last Will and Testament may be revoked and how a newer Last Will and Testament may completely override and thus make any older versions invalid. However, a codicil or an addendum to a Last Will and Testament may modify the older versions.
The Code lists out the requirements for how, in some circumstances, a written communication left behind that was intended to be the Last Will, may instead be a codicil or addendum to that Will.
A Last Will and Testament may contain instructions about funeral arrangements, a “no-contest” clause which may disqualify individuals that contest the Will, and specific instructions on exactly what is needed and wanted at the funeral. A person may even direct the music they would like played at the funeral in their Will.
Will must be admitted to the court for execution
When someone passes away and they have left behind a Last Will and Testament, it is necessary that the Will be admitted to the court so that the person’s property may ultimately be passed on. There is a procedure for bringing the Will before the court and there are various ways this can be accomplished.
It is necessary that a valid Will be brought forth to the court with the appropriate application, so that the court can then give authorization for the obligations and last wishes of the deceased outlined in the Will to be executed.
Ricardo Barrera with The Barrera Law Firm, PC (956) 428-2822 is experienced in probate law and will offer a free on the phone consultation for those interested.