Michael L. Holland Attorney At Law
transfer has been made legally, whether that's with a warranty deed or having other documents of transfer prepared. Although transfer documents are not usually prepared as a matter of course by most probate attorneys as a necessary part of the probate, they are usually available through the probate attorney for a nominal cost. I include these documents in the fee I quote for probate cases.
11. To Summarize - As a service to my clients I do the lion's share of the work involved in a probate case. Besides drafting all the pleadings and filing them with the court, I send out all the notices to known creditors. I also place the ad in the publication and get the affidavit filed with the court. I pay for and obtain the letters testamentary from the clerk's office. I also draft deeds to transfer ownership in real estate for you and I do not charge you anything extra for this. I basically perform most of the duties for you to lessen the stress and burden of my clients.
DOESN'T PROPERTY JUST AUTOMATICALLY BECOME THE PROPERTY OF THE NEXT OF KIN OR THE SURVIVING SPOUSE OR CHILDREN? I'll bet I've been asked this question at least 500 times over the years. Unfortunately the answer is "no." Ownership in someone's assets, whether it be the deed to a house or other real estate or title to a vehicle or financial accounts does not occur automatically. The law requires a process which falls under the umbrella of "probate" to take place so that a court (in most instances) can supervise the transfer of assets according to the laws of the State of Texas. You must take action to complete the transfer. Otherwise, you may be disappointed years later when you go to sell a house you thought was yours and no probate action was ever take.
HOW LONG DOES THE PROCESS TAKE TO PROBATE A WILL? Generally speaking, a probate hearing can be scheduled within a matter of weeks after the initial meeting with the attorney. In the event the will does not include a self proving provision for the attesting of witnesses, any delay should only center around getting the testimony of the witnesses or to secure their attendance at the court hearing. Otherwise, there should be no delay. Once the court hearing is scheduled, the "Letters Testamentary" can be picked up at the probate clerk's office on the day of the hearing if the attorney has pre-ordered them.
WILL I RECEIVE NEW DEEDS ON THE REAL PROPERTY? I cannot speak for what other attorneys do, but when I handle your probate cases and real property changes ownership, I prepare a brand new deed and after all proper signatures are made and notarized, I record the deed for you and have it sent to the new owner.
WHAT WILL BE REQUIRED OF ME? When you hire me to handle your probate case, I handle just about everything for you. Obviously I'll need you to give me the necessary information, but I draft the pleadings, file the case with the court, follow up with the court clerk and schedule the hearing, I meet you at the courthouse and I handle the hearing (with your attendance), I lead you through all the testimony, I secure your "letters testamentary," I mail out the notices to creditors, I place the notice in a proper publication, I draft and after securing all necessary signatures I file the Inventory and Appraisement and all closing documents and as mentioned above I draft any new deeds necessary and record them with the county clerk.
WHAT ARE LETTERS TESTAMENTARY? Letters Testamentary is the document that grants the executor/executrix the authority to take the necessary actions to settle up the estate, to collect debts owed to the deceased, to pay out any claims owed by the estate, to close banking accounts, to transfer property and to distribute the remaining assets to the heirs listed in the will itself.
WHERE SHOULD A PROBATE BE FILED? A will in Texas needs to be probated in the county where the decedent maintained a domicile at the time of his/her death or in the county where he/she owned property.
IS THERE A TIME LIMIT WHEN I NEED TO PROBATE A WILL? Yes. A will needs to be probated within four (4) years from the date of death.
DOES A WILL NEED TO BE FILED WITH THE COUNTY CLERK? It's no longer required for a will to be filed or recorded with the county clerk. You can file your will with the county clerk if you want to by simply paying a filing fee and handing over the will. But the majority of folks haven't done that in decades. This began as a practice to protect against the loss of your will. But most people now have a safe place to keep their documents and no longer file their wills. Another consideration for not filing your will is many people redo their wills as their life changes because of deaths of loved ones or divorce or they want to make a change in the executor or executrix, etc. The original will must be filed at the time the probate case is filed.
AM I REQUIRED TO PROBATE THE WILL? Not necessarily. It depends on the situation. If there are no assets in the estate, then it wouldn't make sense to go through the expense and trouble to probate a will for an estate that has little to nothing in it. There is not a one size fits all answer for this and you should consult with an attorney that does this type of work. However, if there are assets such as real estate or motor vehicles or financial accounts with no co-signors or named beneficiaries on the account, then a probate case will most definitely need to be opened. Think in terms of financial accounts with no beneficiaries, titles to vehicles and mobile homes and real property deeds or mineral interest deeds.
DO I NEED TO PROBATE A WILL IF THE ONLY ASSET IS A MOTOR VEHICLE? If that is all that is in the estate, - in Texas, there is a form to help with that you can find on the Texas DMV website. The form is labeled as: Affidavit of Heirship for a Motor Vehicle Form VTR-262. This will help you transfer ownership in the vehicle.
WHAT DO WE DO IF THERE IS NO WILL? There are several ways to transfer assets to the survivors if there was no will. The least expensive way is to talk to a probate lawyer about a "Small Estates Affidavit" which can be used to transfer assets in an estate that is limited to a homestead and all other assets are worth less than $75,000. This limit is the gross value of the decedent’s separate property plus one-half interest in any community property owned at the time of death. In addition to the above, the decedent’s non-exempt assets must exceed the known liabilities. Then there is another proceeding called a "Determination of Heirship" which is also used when a person dies in Texas without having a Will. The Texas Estates Code determines who the rightful heirs are when there is no will as well as determining the percentages of the estate pass to the heir(s).
So what do you do if there is no will? Maybe there is a house or money locked in a bank account and your loved one left no will. Is there anything you can do?
Yes. There is another form of probate that might work in a situation like this. It's called a Small Estates Affidavit. There are some limitations that go along with this and let's go over them first.
In order to file a Small Estates Affidavit the estate must be limited to a homestead and personal assets worth $75,000 or less. You cannot transfer property this way if it is not the decedent's homestead. Real Estate such as rental property, lake houses or secondary lots cannot be transferred using a Small Estates Affidavit. Also you cannot use this method of transferring estate assets if the decedent owed debts at the time of his/her death, that exceed the non-exempt assets.
There are laws that determine who should get what assets in the event that a person dies intestate (without a will). So the family history has to be detailed in a Small Estates Affidavit to show who is next in the family lineage and the rightful heir.
After all of this has been spelled out in the Small Estates Affidavit in a very detailed way, then two witnesses must read the document and then signed their own affidavits that are attached acknowledging the facts in the document to be true. These two witnesses cannot be related to the decedent by blood or marriage and must have enough knowledge of the decedent to be able to attest that the facts as related in the document are true and correct.
After completion the Small Estates Affidavit must be filed with the probate clerk and after the court or the court's staff attorney has reviewed the pleadings to make certain all requirements have been met, then the judge of the court signs the order approving the Small Estates Affidavit and that signed order along with the pleadings are enough to close the financial account and have the funds paid to the rightful heir(s) as outlined in the Small Estates Affidavit.
In the case of a homestead, the signed order is actually filed with the real property records in that county and transfers the decedent's interest in the homestead to the rightful heir(s) as outlined in the Small Estates Affidavit.
This manner of probate action is only proper when the restrictions as outlined above are met.
In the event you are named as an executor of someone's will, you should know there are certain duties you are taking on when the time comes to probate the will. First, you should hire an attorney that routinely handles these type of cases. A Texas probate lawyer or an attorney that practices in the area of estate planning and wills and probate will be well versed on exactly how to handle matters such as these.
Assuming that you have hired a probate attorney and he/she has gathered all the necessary information from you regarding the estate of the deceased and has prepared and filed the necessary pleadings with the court and secured a date and time for your hearing, it's now time to go to the probate court.
1. Oath of Office - It is usually customary to take the oath at the probate hearing. After your lawyer has lead you through the necessary testimony to prove up the facts and the pleadings, the judge will normally appoint you executor and you and your lawyer will be asked to move over to where the clerk of the court is sitting and you will be asked to take the oath of office and to sign the oath document. In most cases, the will has probably stated that it is the decedent's wishes that no bond be required of the executor. However, if a bond is required, it will also need to be posted before the letters testamentary are released to you. Your attorney will likely be familiar with this and can advise whether this is the case and can help you make the necessary arrangements.
2. Gather all assets belonging to the decedent and maintain control over them. Collect all assets owned by the decedent as of the date they passed away. You need to be in complete control over these assets because they are your responsibility and you will be charged with distributing them to the heirs after satisfying all debts owed by the deceased.
Any funds you receive need to be secured in a banking account styled in the name of the estate. The bank may require you to obtain an employer identification number (EIN) from the IRS. Sometimes the bank can help you get this set up. If not, it's a fairly easy thing to do online.
3. Notice to Creditors At Large – Following the probate court hearing, (within one month) notice must be made to the general public by way of a publication in a newspaper that is printed in the county where the probate has been opened. Your lawyer probably has one he/she uses frequently and already has the forms necessary to set this up. This notice simply advises all people that believe the deceased owed them a debt, to come forward to file their claim.
4. Notice to the Decedent's Creditors – As the executor you will need to send notices to all creditors that you are aware of advising them of their need to file their claim. The requirements are different for a secured debt verses an unsecured debt. For example if there is a secured debt such as a mortgage, you must give notice by way of registered mail within two (2) months following your appointment as executor and receiving "letters testamentary." If the debt is unsecured, meaning no security like a personal loan or a credit card, notice still must be made by registered mail, but the time period in which this notice has to be made is not as rigid so long as this notice is made before the closing of the estate administration. These tasks are governed by the Texas Estates Code, Section 308.053 -308.054.
5. Notice to the Beneficiaries – Within sixty (60) days following your appointment, you must give notice to all beneficiaries that the will has been presented for probate along with a copy of the will. Within ninety (90) days, you must file an affidavit advising the court that this task has been completed. This affidavit is normally a document your probate attorney will prepare for your signature.
6. Inventory and Appraisement – Within ninety (90) days following your appointment, you must file a sworn inventory and appraisement with the court clerk with a detailed list of all property (real and personal), their values and all claims that the estate may have against other persons or entities.
7. Charitable and Governmental Beneficiaries – If the will leaves bequests to charitable organizations or a governmental entity, you should be aware of a short time limit that you have to notify them they have been named as a beneficiary under the Will. This notice must be sent via registered or certified mail, together with a copy of the Will, not later than thirty (30) days following admission of the Will to probate.
9. Other IRS notices – If the estate will be subject of a fiduciary income tax return as discussed above, you have a duty to file a “Notice Concerning Fiduciary Relationship” (IRS form 56) as soon as possible along with the application for EIN number discussed above.
10. Transfers of Property – Once all of the debts have paid, you can now distribute the remaining assets to the beneficiaries named in the Will. The will tells you how to distribute the assets. The letters testamentary issued to you by the court gives you the authority to act with the decedent’s property just as he/she could have for the purposes of following the instructions in the Will. Please keep in mind that ownership interests in real property or with anything that has a title does not automatically pass to an heir. You as the executor have the responsibility to see to it that the