Our Collin County Probate Lawyers Outline the Types of Probate
If you are apprehensive about dealing with probate, you are not alone. Most people do not know very much about the process (nor would they have any reason to), other than that they have heard that it can be time-consuming, painful, and expensive. While probate can be all of these things, it does not have to be. In fact, Texas law offers some unique options when it comes to probate that can significantly reduce the time, stress, and costs involved. When speaking with experienced Collin County probate lawyers, they can devise a plan that’s best for you and your assets.
The Nordhaus Firm has extensive experience representing personal representatives, heirs, beneficiaries, and other interested parties in all aspects of probate administration and litigation in Collin County. We offer free initial consultations, and if you have questions about probate, we encourage you to contact us to speak with one of our probate attorneys about your needs.
Probate in Texas
Texas recognizes three basic types of probate, including Contested Probate of a Will, Uncontested Probate of a Will, and Muniment of Title. Our experienced attorneys specialize in helping you stand up for your loved one’s final wishes and enforcing your legal rights.
Contested Probate of a Will
There are two main types of probate in Texas: independent administration and court-supervised dependent administration. Texas law offers a number of different options as well, particularly when it comes to probating smaller estates.
Independent administration is a streamlined form of probate in which the personal representative (also called an “executor”) is able to administer the decedent’s estate without the need to seek court approval. Independent administration is an option if either (i) the decedent’s will calls for independent administration or (ii) the decedent’s heirs (if there is no will) or beneficiaries (if there is a will) all agree to independent probate. Due to the limited court interactions involved in the independent administration process, it’s often an attractive option for all parties involved.
Court-Supervised Dependent Administration
If independent administration is not an option under the circumstances, it may be necessary to probate the decedent’s estate through dependent administration. With dependent administration, the personal representative is subject to court supervision with regard to most of the significant aspects of winding up the decedent’s final affairs. For example, in the dependent administration process, the personal representative must generally seek court approval to:
- Sell real estate
- Sell vehicles and other items of personal property
- Satisfy obligations to creditors (pay off debts)
- Pay expenses incurred during probate
- Pay professional fees to appraisers, accountants, attorneys, and other advisors
Depending on the size and complexity of the estate, the requirements of dependent administration can potentially add significant amounts of time and expense to the probate process.
Probate for Small Estates
For smaller estates, Texas probate law offers a number of simplified procedures that can avoid even many of the requirements of independent administration. These include the small estate affidavit and muniment of title. Each of these options has its own unique set of requirements and at The Nordhaus Firm, our Collin County probate lawyers can guide you through the process of choosing the type of probate that makes the most sense for your personal circumstances.
Protect Your Interests in Contested Probate with Our Collin County Probate Lawyers
Whether you are preparing to go through probate or you are running into issues during the probate process, our experienced Collin County probate lawyers can help you protect your interests and advise you every step of the way. Our goal is to make the probate process as efficient and amicable as possible. If you would like to schedule a free initial consultation, call our Collin County law offices at 214-726-1450 or submit a request online today.
Disclaimer: While our primary office is located in McKinney, Texas, The Nordhaus Firm provides legal representation to residents in the Allen, Frisco, Prosper, and the entire Collin County area.
Uncontested Probate of a Will
Many people think that if they do not have a hoard of angry relatives fighting over property, then probate administration will be a simple and short matter that they can easily handle on their own. Unfortunately, when it comes to probate, “uncontested” does not mean “uncomplicated.”
A variety of long-standing Texas laws dictate procedures that must be followed to protect creditors, potential heirs, and beneficiaries. In addition, the personal representative managing the estate (the executor or administrator) must also ensure compliance with state and federal tax requirements, court procedures, and other obligations.
An estate executor or administrator is considered a fiduciary. That means they have a legal obligation to act in the estate’s best interests. Mistakes that reduce the value of the estate or benefit the executor over the estate can subject them to liability. Advice from an experienced McKinney probate administration lawyer can prevent costly problems and delays.
8 Steps of a Typical Uncontested Probate Case
Each case is different because each decedent’s situation is different. But here are some of the basic steps that occur during many uncontested probate cases.
1) The probate attorney or proposed executor or administrator files an application for probate with the appropriate Texas probate court
2) The court posts information about the pending application to give notice to anyone who might want to contest the will or challenge the administration of the estate. When the waiting period ends, then the court will open the estate administration.
3) The court holds a hearing to legally recognize the death and verify whether the deceased person left a valid will. The will must meet a number of requirements and if it is not self-proving, witness testimony may be necessary to establish the validity. As part of this step, the court will verify the executor named in the will or appoint an administrator if there is no valid will. The executor or administrator will receive authorization letters from the court giving them authority to handle matters on behalf of the estate, such as gaining access to accounts to pay bills.
4) Within 90 days after being appointed or verified by the court, the administrator or executor must catalog all the assets of the deceased person Depending on the situation, the administrator or executor may need to file an extremely detailed “Inventory, Appraisement, and List of Claims” that meets the requirements of Texas Estate Code § 309.051. In some cases, if the will does not specifically require an inventory and the only unsecured debts are for taxes and administration expenses, an executor may be able to file an Affidavit in Lieu of Inventory with the court, so long as they provide an inventory to all estate beneficiaries. This option does little to decrease the record-keeping burden but can keep the assets of the deceased private because they will not become a matter of public record.
5) While the inventory is underway, the executor must notify the beneficiaries of the estate named in the will. If a valid will has not been approved by the court, then the court must determine the identity of the heirs entitled to inherit under the laws of intestate succession. Interested parties can apply to the court to determine heirship. If there are potentially unknown heirs, such as children born out of wedlock, the court requires notice to be posted in newspapers to increase the likelihood that they will see their opportunity to claim their inheritance.
6) In addition to notifying those who may receive a legacy, it is essential to notify creditors with debts to be satisfied. The executor or administrator bears the responsibility for notifying creditors in a manner that satisfies legal requirements. If the estate lacks the money to satisfy all debts, certain debts take precedence over others, so it is important to ensure that debts are paid and paid in the proper order. It may be necessary to liquidate assets to be able to cover outstanding debts.
7) The executor or administrator is also responsible for paying taxes. While Texas does not assess an inheritance tax and federal estate tax obligations only apply to very high asset situations, it is likely that both the deceased individual and their estate will be required to file tax returns at the state and federal levels.
8) After all debts are satisfied and enough time has passed to give all creditors the opportunity to put in a claim, then the executor or administrator can begin distributing the remaining assets to beneficiaries or heirs according to the will or laws of intestate succession.
Questions Your McKinney Probate Administration Lawyer Can Help You Address
In some Texas probate courts, only lawyers are allowed to file applications to probate a will or estate, and those not admitted to the bar are unable to represent an estate in court. Even in situations where a potential executor or administrator is allowed to proceed without legal representation from an experienced McKinney probate administration lawyer, it is still wise to seek legal advice. Your probate lawyer will know:
- What type of probate to file for the particular situation
- Where to file and how to start the process (There are nearly 20 probate courts in Texas and each one has different proceedings and qualifications)
- How to file the inventory appraisement and list of claims or an affidavit in lieu of inventory and whether it is wise to seek an extension of the deadline
- Whether a probate bond is required and how to handle it
- How to notify creditors in compliance with legal requirements
- The correct order for paying debts
- How to determine legal heirship and handle potentially unknown heirs
- How to comply with tax obligations
- How to avoid the need for costly dependent administration
If multiple beneficiaries or heirs disagree about the administration of the estate or other issues, a knowledgeable McKinney probate administration lawyer could work to negotiate a resolution out of court so the estate assets are not consumed in litigation.