Category: Probate Attorney

What to Expect During Probate When There Isn’t a Will

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Most people know about a last will and testament that helps transfer assets from an individual who has passed away to their listed beneficiaries. In the time following the death of the benefactor or the “decedent” the property and assets go into what has known as probate.

Probate is the legal process involved in transferring property from the deceased’s estate to their beneficiaries. Probate typically occurs when there are real properties or financial accounts involved.

However, if a loved one dies without a will or if they die “intestate,” it does not mean there isn’t hope. In the State of Texas, there are default inheritance rules in place for situations such as this. When this happens, the decedent’s heirs can still be determined and probated. Here is everything you need to know about this process when it happens.

Selecting the Type of Administration

In situations where there is not a will, the first thing you will need to do is to select the type of administration.

Affidavit of Heirship- No administration, or the Affidavit of Heirship is used to establish the title to real estate when the asset is the actual property. No formal administration is needed in these situations where the decedent died without a will and the affidavit of heirship is filed with the county clerk, not the court.

Small Estate Affidavit – This administration is used to collect a small amount of money owed to the estate, like a small bank account. The entire assets of the estate, aside from the homestead, must be less than $50,000 and 30 days must have elapsed since the death of the decedent.

Determination of Heirship – This type of administration is used when all of the heirs of the estate cannot or will not sign a small estate affidavit. The decedent must have died without a will or with a will that didn’t include any real personal property. There must be no debts due on the real estate. After a hearing in court (without administration) the court will declare the identity of the heirs of the estate.

Independent Administration- This type of probate can only occur when the decedent’s date of death was in the last four years. The heirs must all agree on a qualified independent administration (can be a person, firm or corporation). If not, the court will appoint an Independent Administration of the Estate.

Dependent Administration- This probate is used when all of the heirs cannot agree on beneficiaries and there is argument regarding the decedent’s estate. The decedent must have died within the last four years and there has to be a need for a formal administration. This may also be used when one of the beneficiaries is a minor.

Collecting All the Information They Can on Decedent

With the help of an attorney, it is important that the beneficiaries involved are able to get as much information as possible on the decedent. This will only help the attorney assisting you through the process.

If you have any questions about how the process works or are looking for an attorney to help you through this process, contact the attorneys at Hegwood Law Firm today at (281) 845-8538 for more information on probate.

Dealing with Non-Probate Assets| Houston Probate Lawyer

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As a Houston probate lawyer, I am often asked if every asset a person owns will have to go through the probate process when they die. The short answer is that it depends.

While most real estate owned by a person does go through the Harris County probate court following the loss of a loved one, a few asset classes are exempt. They are referred to as non-probate assets.

Instead of being distributed through a will, non-probate assets are automatically transferred to the survivors/beneficiaries, outside of probate. The assets are transferred at the death of the testator regardless of any instructions in the will. As an example, if a husband and wife own a piece of property together, the property is automatically transferred to the surviving partner. There is no distribution of property needed.

There are other assets besides jointly owned assets that are distributed outside of probate. Any assets with a named beneficiary typically avoid probate. Life insurance is one such example where payouts go directly to the beneficiary. In addition, retirement money is a non-probate asset. Life estate and inter vivos trust also are considered non-probate assets.  Here is a brief list of the most common assets that are passed outside of Harris County probate for your reference:

  • Assets held in joint tenancy with rights of survivorship
  • Retirement accounts such as IRAs or 401(k)s that have a beneficiary named
  • Life insurance proceeds that do not have the estate named as a beneficiary
  • Assets held in a living trust
  • Money in a payable-on-death bank account (POD)
  • Securities, bonds, real estate, or other assets with a transfer-on-death provision
  • Pension plan distributions

Remember, non-probate assets are distributed immediately. Simply contacting the bank or company where the asset is located and presenting the death certificate is usually enough to get the ball rolling to distribute the funds. On the flip side, the probate process can take a year or more to get to the point where assets can be distributed to a beneficiary.

The good news is that there are ways to structure your assets so that none of them have to go through probate—even if the assets you are leaving to your loved ones fall outside of this list.  An attorney can help you utilize legal tools and planning to minimize your exposure to probate, or avoid it all together. But, only an experienced estate planning attorney can help you set up your assets to ensure that outcome.

If you would like to speak to a probate lawyer today to set up an estate plan to best protect your assets and minimize the impact of probate court, call our office at (281) 845-8538 to set up a consultation.

 

Harris County Probate Lawyer: Issues to Consider with an Out-of-State Probate

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It has become more and more common now to see clients come in with probate cases that need to be dealt with in multiple states. Many seniors today are “snow birds,” meaning they spend their winters in states with warmer climates while keeping their actual residency in the state they have spent most of their lives in.

These seniors often own property in the state where they spend their winters, whether it is real property like a vacation home or timeshare, or even tangible property like a car, boat, or financial account. When the senior passes away, a situation is created where an out of state or ancillary probate proceeding must take place to administer the out-of-state property. Whatever the case may be, clients dealing with an out of state probate often need help since they are dealing with two or more sets of probate rules and regulations, all of which differ from state to state.

Texas probate lawyers find that one of the biggest issues involving an out-of-state probate proceeding is cost. Typically, you will need to pay probate court fees for each property held under a different probate court jurisdiction. In addition, you may be faced with extra accounting and legal fees. If possible, you should try to find an attorney who is licensed both in the home state of the deceased and the state where the ancillary probate is taking place.  While the fees may still be higher than usual because the probate is out-of-state, it will still most likely be cheaper than hiring multiple attorneys to handle one estate.

Another serious issue can arise if the decedent did not leave behind a Last Will and Testament. When this happens, the probate court will often order distributions of the estate based on the laws of intestacy. The problem with out-of-state probates is that every state has different laws of intestacy, meaning the heirs in one state may not be the same as the heirs in another. This is a very tricky situation and one where Texas probate attorneys urge their clients to proceed with caution as it may cause additional stress for already grieving family members.

Are there ways to avoid an out-of-state probate proceeding? Yes, but it all depends on the state where the additional property is held since, as noted before, every state has different laws concerning probate. Some of the techniques Harris County probate lawyers use to get around an out of state probate include placing the property into a revocable living trust, owning the property jointly with someone else, or drafting a type of deed where the property is transferred upon death. However, probate lawyers caution that this type of planning must be done BEFORE death, and attorneys must be consulted to make sure these techniques will actually work in the state where the property is held.

If you are need help with an out-of-state probate or would like to plan to avoid out-of-state probate proceedings, please contact our Houston law firm at (281) 845-8538 to set up a consultation.

Harris County Probate vs. Non-Probate Property – Know the Difference

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Many people think that as long as your will clearly defines how you would like to transfer your property at your death, it will be an easier, straight forward process. However, this is not always the case.  Especially when it comes to probate in Harris County. There are many different rules that can impact how assets are transferred in a way that maybe you had not intended.

Probate is the legal process of overseeing the transfer of property of an individual that passes away without a living trust.  During the creation of your will, you will name an executor to oversee the process of carrying out your final wishes and the transfer of your assets that are in your name.

But, does everything you own have to go through this probate process—which is public, easy to contest and can take a long time?  It depends.  Property can become non-probate property depending on whose name is listed as the owner. Property will be considered non-probate property if:

  • There is a joint owner with right of survivorship
  • A beneficiary is already designated on a life insurance or a retirement account
  • Property is owned by a trust with named beneficiaries

In these cases, joint owners and beneficiaries displace the request of the will. At the time of death the property will pass automatically to the joint owner or beneficiary without the approval of the probate court.

The bottom line is that your will is not necessarily the final authority on where your property and assets will go at the time of your death. Knowing the difference between which assets are subject to probate and which are not can save your family a lot of heart ache. If you want to be certain that your family gets the money and property that you want to leave to them, call our office at (281) 845-8538 to schedule a consultation.