If you have recently lost a member of your family or a close friend, we want to first sympathize with your loss. We understand that this can be a difficult time for you. This might not be the time when you are most likely to think about how to handle that deceased person’s estate. While dealing with a loss can be emotionally draining, we encourage you to hastily wind up the affairs of the decedent. We are here to help you make the right choices regarding probate. This post will help explain some of the common issues regarding probate. When you are ready to seek assistance with this process, please call us and let us shoulder this burden during your time of grief.
The first thing you should look for following the death of an individual is their will. Hopefully you, or someone else, already have access to this document. If not, look in the most likely of places. A bookshelf, a file cabinet, a desk drawer, a lock box or storage safe in the house; anywhere that you think your friend or relative may have kept something safe. Keep in mind that you may not necessarily be looking for a formalized document. A will can be written entirely in the deceased person’s handwriting and is still valid, if it complies with other formalities. Look for a document that seems to distribute property on death. This is important because the will must be probated within four years of death. There are exceptions; but if the court presumes that the person died without a will and makes a statutory distribution, it will be more difficult to later come forward with a will if the four-year time limit has expired.
If a will is located, it is likely that it contains a provision naming an independent executor. The naming of an independent executor greatly simplifies the will probate process. Essentially, after the independent executor is qualified with the court, they file an inventory of the assets with the court, appraise the value of those assets, and compile a list of creditor claims against the estate. Once the inventory is filed, the independent executor is able to administer the estate without the need for constant court intervention or supervision. This allows the independent executor to pay or deny creditor’s claims, compromise claims on behalf of the estate, set aside the family allowance and exempt property as necessary, continue to operate the estate’s business, and/or make partial or final distributions to the will beneficiaries. Additionally, if it is not specifically stated in the will, the court can also grant the independent executor the power to sell property as necessary to the administration of the estate. Although the court does not directly supervise the function of the independent executor, that person owes a duty to beneficiaries, heirs, creditors, etc. If that duty is breached, the independent executor can be removed.
Texas also offers other simplified procedures for estate administration. Keeping in mind the goal of estate administration, these procedures provide a manner in which title to property can legally pass from the owner following their death.
- Texas recognizes informal family settlements: If no title documents are involved (deeds, stock certificates, etc.), the surviving family members can wind up the estate informally. Even if the estate contains property for which administration is required, a written, signed agreement stating how the property should be distributed is recognizable as well (in some circumstances).
- Probate of Will as Muniment of Title: If the estate does not owe a debt, aside from a mortgage on the homestead, the will and the order admitting the will to probate can be recorded in the county records. This creates a link in the chain of title and nothing is further required in terms of estate administration. (This is a limited circumstance.)
- Statutory Heirship Proceeding: This establishes, by court order, that the person is deceased, that they left no will, and that heirs named in the court order survived the person. Because this applies only when the deceased dies without a will, the court order will also specify the amount of the heirs’ shares.
- Administration of Small Estates: If the person dies without a will, and the value of their estate (not including the homestead and exempt personal property) does not exceed $50,000, the heirs are entitled to the estate without the need for administration. A number of requirements must be satisfied by affidavit, which includes identifying the basis upon which an heir believes they are entitled to a distribution.
During the estate administration process, notice to creditors is required. The procedure for such notification is laid out by statute. One month after appointment, the personal representative must provide notice to unsecured creditors by publication in the newspaper in the county where the estate is administered. To facilitate faster administration, the personal representative may serve personal notice on an unsecured creditor, but they are not required to do so. A secured creditor, however, must receive personal notice within two months of the personal representative’s appointment. This must be done by certified or registered mail, return receipt requested. The purpose of notifying creditors is to allow for recognition or denial of any claim made against the estate. This process should not be overlooked. It can be tedious, so please allow us to help you understand what is and is not required.
If you, or someone you know, are in need of help regarding estate administration, will construction, or probate proceedings, please call us and let see how we might be of assistance. We do not want you worrying about all of the technical requirements. We want to help you achieve as smooth an estate administration as possible for you and your loved ones.
Suggested tags: Texas probate, estate, administration, estate administration, heirship, muniment of title, probate, wills