The loss of a loved one is emotional, sad and sometimes tragic.
Generally, the person named executor (or “executrix”) in the Last Will handles the administration of the estate. The first job of the executor is to meet with a probate attorney. The attorney will look over the Last Will to make sure it meets the legal requirements, gather basic information, let you know if any of the probate alternatives are available, and discuss the Texas probate process.
After the executor meets with the probate lawyer, the lawyer will draft the necessary legal documents, then schedule a time to go to the probate court for the probate hearing. A witness (sometimes two witnesses, depending on how the Last Will was drafted) will go with the attorney to the probate court to “prove up” the will.
Probate Court Hearing
Proving up a will basically entails showing the probate court judge that the will is legally valid under Texas law. A witness is required at the probate court hearing, and the executor serves as the necessary witness. Probate lawyers are familiar with the facts needed in order for the judge to accept the will as legally valid. Simple questions are usually asked at these hearings. The Judge can also ask questions.
At the scheduled time, the probate attorney and witness(es) will go to the front of the probate courtroom before the judge. The attorney will begin asking the witness questions relating to the will. For example, the probate lawyer will ask things like, “Isn’t it correct that your Dad had his primary residence in Harris County when he died?” The judge may ask the witness a few simple follow-up questions. Again, the probate hearing is intended to establish all the necessary facts to prove that the Last Will is valid and that the named executor is best suited to serve.
Complete Probate Court Documentation
Once the judge accepts the will as valid, the court will issue ‘letters testamentary.’ Basically, the letters testamentary give the executor the legal authority to handle the estate’s affairs. For instance, with the letters testamentary, the executor can pay off debts, transfer title to property, and carry out the gifts in accordance with the Last Will. These letters are VERY important!
At the probate court for the will prove-up, the judge will mention that the executor must file an inventory and appraisement as well as give the required notice to the heirs under the will. These tasks are usually nothing to fret over, and the probate lawyer will be there to give guidance. Outside of that, in most cases, the executor will not need to interact with the probate court any further. The witness (generally, the executor) only has to make that one trip to the courthouse.
Please note that this process is relatively hassle-free only if the person who died had a properly drafted Texas Last Will and Testament. That is, the streamlined probate procedure described here only occurs if there actually is a will, the will is valid, the will is self-proved, the will asked for “independent administration” of the estate, and so forth. Only the probate lawyer can tell you exactly how the process will work in your situation.
Muniment of Title
The Muniment of Title procedure is best used when (a) there was a will, and (b) the estate has few assets. This procedure avoids full-blown probate but still requires interaction with the probate court. That is, in this process, a will is actually filed as a public record.
However, the will is admitted as muniment of title only. Also, this is primarily used when there are no debts owing by the estate (other than debts secured by liens on real estate) and no other reason to have a full administration of the estate.
This process provides the applicant with the legal paperwork necessary to disburse the estate’s assets without all the formal requirements of full probate. Probate attorneys often recommend this procedure when the decedent owned only an interest in real estate and perhaps a bank account.
Why Trusts Are So Important
It is possible for an individual to create trusts during his or her lifetime for the purpose of transferring property to beneficiaries outside of the probate process. A trust created during the individual’s life are called living trusts or inter vivos trusts. In states with more arduous probate processes, inter vivos trusts can be a good way to distribute property to heirs while minimizing hassle.
However, in Texas, it may not be advisable to solely rely on trusts to try to transfer property outside of the probate process. This is for a couple of reasons. First, the probate process in Texas is relatively hassle-free and inexpensive. Probate in Texas is simply not the dreaded ordeal it is for residents of many other states. Second, even if an individual uses inter vivos trusts to attempt to avoid probate, the individual should absolutely still have a Last Will. That is, it is almost impossible to get ALL of the individual’s property into the trust as he may have forgotten about some property. Plus, the individual still needs to name an executor, describe how he wants the estate’s debts to be paid, name guardians for his minor children (if applicable), make specific bequests, and so forth.
So, since the individual will need a will regardless of the existence of inter vivos trusts, the inter vivos trust just adds a layer of work and expense. Inter vivos trusts can be useful for other estate planning purposes, but, in Texas, the primary reason for a living trust should not be to avoid the transfer of property through the probate process.
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