After the death of a loved one, grief is often not only painful, but overwhelming. The tasks of everyday life become difficult; the thought of dealing with legal matters like probate loom large. The probate attorneys at Hegwood Law Group, in offices throughout the Houston area, empathize with your situation. We will do everything in our power to make any legal process you have to go through as short and simple as possible so you can go on with your healing, deal with your family, and resume your life. We view ourselves as more than legal counsel. We know well that at this time you need emotional, as well as legal, support and are well-prepared to offer both.
When Probate Is Necessary
Most of the time, if the deceased’s property was personally owned, the estate must go through probate in order for property and assets to be transferred to the beneficiaries. If no beneficiaries have been designated, probate is also necessary. Assets that commonly go through probate are: real estate or vehicles titled solely in the deceased’s name and the portion of a property that the deceased shared with a “tenant in common.” When probate is necessary, it is the job of the executor to open the case in probate court and see it through to its conclusion. If there is no will and no named executor, the probate court will appoint an individual to serve in that capacity.
Two Kinds of Texas Probate
There are two basic kinds of formal probate in Texas: independent administration of estates and dependent administration of estates.
Independent Administration of Estates
Most Texas wills instruct the named executor to independent administration of the estate since that is the simpler, more efficient, less expensive way to proceed. If there is no will at all, or if the existing will does not provide for independent administration, it is still possible for the executor to petition the court for authority to act as an independent executor. In this case, however, all beneficiaries must agree.
Under Independent administration, the executor:
- Does not have to post a bond insuring the estate against losses incurred by his or her own careless or dishonest action
- Need not ask the court’s permission before paying debts, setting aside a family allowance, selling estate property, or distributing assets to beneficiaries
- Must publish notice to potential creditors and file an inventory of assets with the court
- Must collect and safeguard estate assets until it’s time to transfer them
- Is entitled to a commission of 5 percent of all estate money received and paid out (not including money distributed at the time of death)
Dependent Administration of Estates
Though not as common, a dependent administration may be requested by the executor. This type of administration involves more court supervision of the probate process.
Documents Needed To Go Through Probate in Texas
As your probate attorneys, we will make sure you have all the necessary documents and financial information to streamline the probate process. These documents include:
- Original will (Last Will and Testament) of the deceased
- All official papers regarding the deceased’s assets, investments, real estate holdings, bank accounts, and personal property
- Death certificate
- Trust agreements
- Divorce decree (if applicable)
- Retirement plan documents
Understanding that no two probate cases are identical, we are experienced with and prepared to handle all types of contingencies. Even if your loved one died without a will, we will work hard to make sure his or her wishes about property distribution are followed, while still following state and federal guidelines.
Assets That Don’t Have to Go Through Probate in Texas
In a well-planned estate, many assets do not have to go through probate. This is true in cases in which the deceased was married and owned most assets jointly with his or her spouse. It is also true if trusts were created by a knowledgeable probate attorney, such as the experienced attorneys at Hegwood Law Group who are determined to help you avoid probate. Listed below are some of the assets that do not have to go through probate:
- Retirement accounts (e.g. IRAs or 401(k)s) with a named beneficiary
- Life insurance proceeds with individually named beneficiaries
- Funds in a payable-on-death (POD) bank account
- Securities registered in transfer-on-death (TOD) forms
- U.S. savings bonds registered in payable-on-death forms
- Co-owned U.S. savings bonds
- Real estate with a valid transfer-on-death deed
- Pension plan distributions
- Wages, salary, or commissions due to the deceased person
- Property held in joint tenancy with right of survivorship
- Property held as community property with right of survivorship
What Is Summary Probate?
Summary probate (a shorter, less complicated and less expensive procedure) is only possible in Texas if the estate is quite small — $50,000 or less (not including the homestead and exempt property, such as household furnishings, appliances, cars, and personal effects). Nonetheless, if the deceased has had savvy estate planning advice — the kind that Hegwood Law dispenses daily — enough of the assets may be in various types of protective trusts to have winnowed the estate down to the required amount. Since the money that is put into a trust is no longer legally “owned” by the person who set it up, it is possible that an estate worth several million dollars may be able to go through only a summary probate with the help of careful planning.
Seek Help From a Houston Probate Attorney
Whether you are planning your estate with Hegwood Law Group or come to us to help you deal with probate after the death of a loved one, it is important for you to understand what probate is and how it may affect you and your family. Our skilled and patient attorneys are available to explain the process and to lead you through it when necessary. To connect with us please call or fill out one of our convenient website forms.