ProbateIf you are here to learn about Texas probate after the passing of a loved one, we first want to say that we are very sorry for your loss. We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.
With that said, probate in Texas is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries. Probate can also be necessary to:
- Prove the validity of the will
- Appoint someone to manage the estate (The “administrator” if there is no will or the “executor” if there is one)
- Inventory and appraise the estate property
- Pay any debts or taxes (including estate 0taxes)
- Distribute the property as direct by the will—or by Texas law if there is no will.
What is so bad about probate in Texas, and what should I do next?Many residents in Texas have heard that probate is bad news. While Probate is not as expensive in Texas as it can be in other states, it is time-consuming, and it is also a public process. Although Texas offers various types of probate to fit a variety of situations, poor planning can leave your loved ones in over complicated situations waiting for the process to play out. Missing heirs, property that is not titled as it should be, and blended families can add time and expense.
The easiest way to avoid the probate process is to plan; but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.
How is a Probate Started in Texas?The hardest thing for people to understand is that a Will does not do anything unless it is probated. An un-probated Will is just a piece of paper. Although any interested person can initiate probate, normally the person named in the will as the Executor starts the process by filing the original will and an Application to Probate the Will with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition.
How is the Executor Chosen?If the decedent had a will, the person named in the will as the Executor will serve, if eligible. If that person is unable or unwilling to serve as Executor, or if there is no Will, then any interested family member or person can petition the Court to be the Administrator of the Estate.
How does the Executor Get Paid?Texas law provides that the Executor may get paid according to a compensation schedule, based on a percentage of the assets that flow into and out of the probate estate. Many times a will provides that the Executor will not receive compensation, and the will overrides state law on that matter.
Could I Be Held Personally Liable For Making a Mistake as an Executor?Being an Executor is a big responsibility. The Texas Estates Code contains pages upon pages of complex legal rules and procedures that an Executor must follow during the administration of the Estate. There are certain deadlines that an Executor must meet in filing papers with the Court. If an Executor violates any of these rules, they can be held personally liable for losses to the estate.
My loved one had a trust… will we need to go through probate?In most cases, no. If your loved one’s assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.
Unfortunately, many people who have a Trust think they have it all taken care of, but time and again, family members of a recently passed loved one come into my office and we find that they are facing the frustration, expense, and delay of a probate, even though the person they loved had a trust.
Why is that? Often the Trust was prepared many years ago and was never updated; and often, their loved ones’ assets were not owned in the name of the Trust. That is why it is so very important that you carefully choose your estate planning attorney and have regular reviews of your plan and assets, so that the planning you do now works as planned later.
It is why we do things so much differently than most other lawyers and law firms, here at The Mundheim Firm.
What Assets are Subject to Probate?Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such titled as “Joint Tenants with Right of Survivorship,” or as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Talk to an attorney if you have questions about your specific situation.
How is Distribution of the Estate Handled if there is no Will?If there is no will or trust, the estate will be distributed according to Texas laws of intestacy. Although it can be complex, and particular facts dictate each situation, a person’s estate will be distributed in roughly the following order:
- Spouse (varies by whether there are children and if both spouses are parents of those children)
- Parents (if you have no children)
- Siblings (if you have no children or parents)
How long does Probate take?The length of time of a probate will depend on several factors. It usually takes a minimum of 2-3 months and can take up to two years or even longer for complex cases.
How much does Probate Cost?Unlike many states, probate fees in Texas are not set by statute. At The Mundheim Firm, we do our best to handle each probate case on a flat fee basis. These fees range from $500.00 where an Affidavit of Heirship can be used (does not involve the probate courts, but only works in limited situations) to upwards of $7,000.00 to initiate a dependent administration (which also has some ongoing annual fees). There are a variety of situations with fees in between those two.
There are also court costs and filing fees, document certification and recording fees, and property appraisal fees. Preparation of Estate Tax Returns are priced separately and carry additional fees when necessary.
Getting Help: Choosing The Right Attorney For Your Probate CaseThe best way to ensure your probate is done right is to choose your attorney wisely. Do not assume that all attorneys are the same! Too many lawyers only “dabble” in probate or trusts. Do not choose a lawyer who does probate as a sideline. These lawyers often blunder causing real problems for their client and their cases often take longer than those handled by experienced probate lawyers.
You do not have to use the attorney who prepared the will either! Just because a particular attorney prepared the will, does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you. Choosing your probate or trust lawyer is one of the most important decisions you will make. If you put in the time and effort to find the right lawyer, you will be rewarded with a skillful guide who will help you navigate the probate process.
Contact The Mundheim Firm For A Complimentary Post-Death Estate ReviewIf you are ready to get started with the probate process after the passing of a loved one, please contact our experienced probate attorneys at 817-479-0076 or schedule a complimentary 15-minute consultation to help determine your next best steps. We are here in service to making this all as easy as possible on you. You may also schedule a One Hour Probate Consultation.
During this appointment, we will answer all of your questions about probate and guide you and your family through the next best steps. We are committed to helping you administer your loved one’s estate as quickly and efficiently as possible, and look forward to relieving any administrative or legal burdens you may face during this time of loss.
Trust & Estate AdministrationWhen a loved one dies it can be a confusing time in which you are in immense grief while also needing to make sure you handle all the technical details of locating assets, paying bills, and making sure your loved one’s assets get to the right people, without conflict. We are here to help.
Whether your loved one created a trust to hold their assets or not, he or she did have assets (called the estate of the deceased) that must be handled with careful attention. It is critical that you work with a Personal Family Lawyer® who can help you to do the right thing, minimize conflict, and ensure the smoothest possible transfer of assets.
When someone creates a trust as part of their estate plan, they must name a trustee to ensure the trust’s terms are handled properly. These individuals must carry out all of the trust’s instructions, and they are legally responsible for doing so within the scope of federal and state law. Such duties are known as trust administration.
Serving in this capacity entails a huge level of responsibility and liability. Most people named as trustee will have limited, if any, background or experience in the legal and financial duties that come with administering a trust. The trust administration lawyers at The Mundheim Firm can work with the trustee to ensure the trust is administered properly and all legal requirements are satisfied.
If there is not a trust or if not all assets have been properly titled in the name of a trust that was created, we can help your family through the process of estate administration, usually requiring a court process, called probate. If you are a beneficiary of an estate, an executor, or a trustee, contact us for support in handling the tranfer of your loved ones assets as easily as possible.
Trust and Estate AdministrationAs your Personal Family Lawyer®, we work closely with the family, beneficiaries, and other advisors to ensure the decedent's assets are collected, debts are paid, and the remaining assets are distributed to the beneficiaries or heirs of the estate. Depending on the type of trust involved, assets may be distributed outright to the named beneficiaries, or they might be held in trust for the future benefit of the named beneficiaries. If there is no trust, assets will either be distributed outright to heirs, to will beneficiaries, to a guardian, or into the registry of the court until an heir reaches the age of majority.
During this time, we may also need to have appraisals of major assets completed in order to get a clear picture of what the decedent's net worth was for estate tax purposes. Additionally, the title of trust or other estate assets may need to be changed to indicate new ownership by the named beneficiary outright or under a continuing trust.
All of this can be a hugely complicated and time consuming, but our trust and estate administration lawyers will transfer assets as quickly and smoothly as possible, resolve outstanding issues, and ensure that everything occurs within the applicable legal deadlines.
Trust and Estate Administration ServicesBelow, we have outlined some of our most common trust and estate administration services. We can accomplish the following duties without unnecessary delay and with utmost respect for your personal privacy and family relationships.
- Identification, collection, and determination of values of assets
- Payment of all debts, expenses, and taxes from estate and trust assets, with submission of regular accountings
- Advice as to disposition of jointly held assets, life insurance, and retirement benefits that pass outside a will or trust
- Preparation of state and federal, gift, generation-skipping transfer, and gift tax returns
- Notifying all heirs and beneficiaries of the trust or estate
- Communicating with beneficiaries