FAQ'S

 A Will is a legal document that is written to ensure that upon your death, your assets are given to the heirs that you specify. Without a will, your estate will be distributed according to state law.

Probate is the process by which your financial affairs are taken care of and your assets are distributed to your heirs. This administration will be required whether you die with or without a will, and your executor will be the person that oversees the process. As part of the probate administration, your executor will gather your assets, pay any of your creditors, determine your rightful beneficiaries or heirs, and distribute any remaining assets to the proper persons.

The primary function of a will is to leave instructions on how to distribute your property after your death. Another known function of a will is to appoint the executor who will carry out your wishes. By appointing your executor, you have an opportunity to save your heirs significant amounts of time and money in legal fees.

In Texas, the executor can be authorized to conduct either a dependent or an independent administration. In a dependent administration, the Probate Court must supervise the administration of the estate. Under this supervision, each step of the probate process must be presented to the Probate Court for approval. This means that the probate attorney your executor hires may have to prepare several motions and make several trips to the courthouse, all costing the estate time and money.

In contrast, the executor in an independent administration is given the freedom to administer the estate without obtaining court approval of each step of the process. In fact, in an independent administration, Texas law provides that no action shall be had in the courts in relation to the settlement of the estate other than 1) the probating and recording of the will, and 2) the filing of an inventory, appraisement, and list of claims of the estate. Basically, after the offering up of the will and the filing of an inventory, it is possible that your executor will not have to make any more trips to the courthouse. 

Because the powers granted to an independent executor are very broad, it is imperative that you have the highest level of confidence in the diligence and integrity of the executor you appoint. There have been cases where a poor choice for executor has led to disastrous results. Thus, an independent executor should be chosen carefully and should be someone in whom you have complete trust in.

Something else that can significantly reduce the time and legal fees incurred by your estate is the use of a "self-proved" will. In a self-proved will, the testator and the witnesses sign the will. While doing so, the testator and witnesses sign a "self-proving affidavit" or sign the will in front of a notary. This eliminates the need to locate the witnesses and will work even if the witnesses are deceased.  A will must also be executed with certain formalities in order to be considered valid under the Texas Estates Code.

 The Texas Estates Code provides default rules for persons who die without a Will ("intestate"). The default rules are based upon marital and family relationships. 

As you may have already determined, there is a significant potential for problems with the intestate distribution method. A few of the more typical problems are explained below.

Separate Real Property and the Surviving Spouse - In cases where the Decedent leaves behind a surviving spouse and an estate that includes separate real property, the surviving spouse is often shocked to learn that he or she does not inherit the whole of the separate property. In fact, in cases where the Decedent leaves descendants, the surviving spouse inherits only a "life estate in one-third" in the separate real property. This means that the surviving spouse can live on the property for the remainder of his or her own life, but he or she cannot sell or mortgage the property without the cooperation of the descendants. If those descendants are minors, they may not be able to give legal consent.

Minors or incapacitated persons as heirs of the Estate - Many courts will require that a guardianship be established in order to receive that portion of the estate that is passed to heirs who are incapacitated or who are minors. Furthermore, many Courts will not allow an independent administration in cases where incapacitated persons are heirs of the estate. Thus, in cases where the Decedent leaves behind descendants who are incapacitated, significant court involvement in the estate may be required. Significant court involvement usually means significant attorney's fees.

Community Property and Children from a Previous Relationship - In cases where the Decedent leaves behind descendants from a previous relationship and an estate that includes community property, the Decedent's 1/2 share of the community property estate passes to the Decedent's children, not the spouse. Thus, the surviving spouse will now share the community property estate with the Decedent's children. Again, this means that the surviving spouse cannot sell or mortgage the community property without the cooperation of the other heirs to the property.

 What is probate? Probate is the legal process that transfers title of property from the Estate of the person who has died, known as the "decedent", to his or her beneficiaries. Probate is often sought when the decedent owned real property or financial accounts and the financial institution has requested Letters Testamentary or Letters of Administration.

How to probate a Will? A will is a legal document written to ensure that upon the decedent's death, the decedent's property is given to the people specified in the will. For a will to have any legal effect, it must be "proved-up" or probated in a Probate or County Court to prove it was validly executed, that it is the decedent's last will, and that it has not been revoked. The will and an application asking the court to admit the will to probate are filed with the court. In addition to offering the will for probate, the applicant may also request that the court appoint an Executor or Administrator for the decedent's estate. 

Who can probate a will? The application may be made by the Executor named in the will or by any heir, devisee, spouse, creditor, or any other persons having a property right in, or claim against, the Estate.

How long do you have to probate a Will in Texas? An application for the probate of a will should be brought within four years after the death of the person making the will. A will can be probated after four years, however, the person bringing the will must explain why he or she should not be held in default for not offering the will in a timely manner. Furthermore, all persons who would inherit in the absence of the will must be notified prior to the court considering the application.

Must the Executor use the decedent's attorney that drafted the will? No, there is no requirement that the attorney who drafted the will be the attorney who probates the will. The Executor is free to hire the attorney their choice.  

 Who can initiate probate proceedings? The application may be made by any heir, devisee, spouse, creditor, or any other persons having a property right in, or claim against, the estate.

What is the time limit for starting probate? If you would like the court to appoint an administrator of the estate, that application must generally be brought within four years after the death of the decedent. The court will often ignore this rule if there is property due to the estate that needs to be collected by an administrator. Other types of probate can be brought at any time.

What happens when a person dies without a will? All is not lost if your loved one dies "intestate"(without a will). Texas has default inheritance rules in place for such an occurrence. See Texas Estates Code Chapter 201. Therefore, if there is no will, or the decedent's will is found to be invalid, the decedent's heirs can still be determined and the decedent's estate can still be probated.

 So many times, a client has contacted us and would like us to just give them Letters Testamentary, and it sounds so simple.  Just to get a letter from our office or from a Judge, but in reality the process of obtaining Letters is quite a bit more complicated, as it should be for such an important responsibility.

What are Letters Testamentary? Letters Testamentary are the formal documents issued to an Executor of an Estate by a court having jurisdiction over that Estate. They are issued by the Court only after the Court has considered whether the Will that is being offered for probate was validly executed and whether it is the last Will written by the decedent. The Court must also determine the type of administration that will occur and whether the named Executor is qualified to serve as the Executor of the Estate.

Letters of administration are legal documents that give a person the authority to manage a deceased person's estate in Texas when there is no will or the named executor is unable or unwilling to serve: 

Purpose: Letters of administration are issued by the probate court and give the administrator the legal authority to act on behalf of the estate. This includes managing the estate's assets and debts and distributing the property to the beneficiaries. 

Who receives: The person appointed to manage the estate is called the "administrator". 

The Letters Testamentary or Letters of Administration provide evidence of the executor or administrator's appointment by the court and grant them the authority to carry out their duties, which may include accessing bank accounts, selling property, paying debts, and distributing assets to beneficiaries.

 Small Estate Affidavits (called SEAs for short) can be a fast and affordable way to transfer property to a decedent’s heirs.

An SEA is an alternative to a full probate administration in Texas and is available in limited circumstances.

 You may be able to use a SEA in Texas if you meet all of the requirements set out in the Texas Estate Code Chapter 205.  Some of the essential requirements include the following:

• The decedent died without a will.
• The decedent left no more than $75,000 in property (not including homestead property, exempt property, and other non-probate property).
• The assets are worth more than the debts. (A homestead, exempt property, and other non-probate property do not count as assets, and mortgages or debts secured by exempt property do not count as debts for the SEA calculation.).
• The only real property owned by the decedent was the decedent’s homestead property.
• The homestead property will be inherited only by the decedent’s surviving spouse or minor child(ren) who were homesteading with the decedent at the time decedent died.
• All heirs will sign the Small Estate Affidavit (or someone with legal authority will sign on their behalf). (Some courts will not approve an SEA if any of the heirs are minors. Talk with our attorney if any of the decedent’s heirs are minors.)
• There is no pending application for the appointment of a personal representative, and no court has appointed a personal representative.
• There is no administration needed.

 A less restrictive alternative to Guardianship is a Statutory Durable Power of Attorney. A power of attorney allows a “principal” to designate an “agent” to handle the principal’s business affairs in the event the principal becomes incapacitated. The powers in any power of attorney are broad and sweeping. Therefore, it is of the utmost importance that the principal has the highest confidence in the integrity and diligence of the agents appointed in such a document. Please consult an attorney before signing ANY power of attorney.

The principal (the person granting power to an agent) should please call The Hay Law Firm to set up an appointment.

 A Medical Power of Attorney allows a principal to grant an agent the authority to make health care decisions for the principal in accordance with the principal’s wishes, including the principal's religious and moral beliefs.

The principal (the person granting power to an agent) should please call The Hay Law Firm to set up an appointment.

NOTE: A power of attorney is a powerful document. Therefore, the Hay Law Firm will only draft a Statutory Durable Power of Attorney or Medical Power of Attorney at the specific direction of the principal.