Probate of Last Will & Testament
When you have a need to probate your loved-one’s estate, you should consult with an experienced probate attorney in Northwest Houston/Cypress, Texas.
Probate is the name for the legal process of proving the validity of the Last Will & Testament of the deceased. If the intentions of the Will are clear and not ambiguous, then the terms of the Will are ordered to be carried out by the Executor of the Will. Thus, the Executor is charged with distributing the deceased’s property to the beneficiaries according to the Will.
Probate of a Will takes place in Court. The general procedure is as follows:
- File Application to Probate Will in Harris County, Texas, or whichever county where the deceased resided;
- Attend the Court hearing to “prove up” the Will. This is where the Judge examines the Will to determine if it is a valid Will under Texas law. Sometimes, additionaly witnesses are necessary if there is a slight problem with the Will.
- Sign the Oath and return it to the Court. Request and obatin Letters Testamentary. Letters Testamentary are issued by the Clerk and give the Executor the power to “stand in the shoes” of the Decedent for anything financial that needs to be done.
- Publish a Notice to Creditors in a local, legal newspaper for the County in Texas where the probate is on file.
- Notify all beneficiaries of the Will by certified mail, return receipt requested, or obtain a Waiver of Service from the Beneficiary.
- File a Certificate of Compliance with the probate Court notifying the probate Court that you have put all beneficiaries on notice.
- File an Inventory of the probate estate, or an Affidavit in Lieu of Inventory if all creditors have been paid, and all beneficiaries notified of the assets in the probate estate.
- Acquire certified copies of the Last Will & Testament of the deceased and a certified copy of the Order Admitting Will & Authorizing Letters Testamentary signed by the probate Court.
- Record the certified copies referenced in #8 above with each county in Texas where the deceased owned any real property interest.
That completes the legal process, but the Executor’s job is usually not done at that point. Your local Cypress & Northwest Houston at the Law Office of Troy M. Moore, PLLC will stick with you with all follow up questions you may have. Keep in mind that there are things that the Executor has to do himself/herself (i.e. anything to do with financial institutions or real estate). The powers of an Executor may not be delegated to a third party.
Get connected with us today for a free probate consultation and, in most cases, a flat fee quote for all expenses and fees for your probate Court in Northwest Houston/Cypress, Texas.
Probate of Will as a Muniment of Title
Another form of possible probate of someone’s estate with a probate attorney near you is to probate the Will as a Muniment of Title.
Probate as a Muniment of Title is unique to Texas law; however, it can be a good life-raft for a person’s Will which cannot have an administration in Court due to the expriation of the four-year statute of lmitations for filing to probate a Will with an Administration.
However, if you are outside of the four-year window from the deceased’s date of death, and you have a Will for that person that specifies who gets their estate, it is still a viable way to get the Will in to probate Court in Texas.
If you find yourself outside the four-year window from the date of death, you simply have to notify all heirs of the deceased with a special Notice to Heirs of Probate of a Will after four years, or get a consent from each heir to allow the process to move forward.
Probate as a Muniment of Title is not the preferred method of probate because of the following reasons:
- Banks, title companies, and lenders located outside of Texas do not usually have a grasp on the method and utility of probating a Will as a Muniment of Title;
- No Executor or Administrator can be appointed;
- No Administration can be had through the probate Court;
- The procedure cannot be used if there are any debts;
- The procedure cannot be utilized if the deceased received Medicaid benefits prior to 2005.
Despite the cons listed above, it still works to transfer real estate, allow access to bank accounts, retitle vehicles. Probate as a Muniment of Title just has its own built-in limitations.
Our office would love to get together with you to assist on your Probate of a Will as a Muniment of Title case — so contact your local probate lawyer, the Law Office of Troy M. Moore, PLLC, and schedule your free consultation today.
Heirship & Intestacy
Heirship is the name of the legal process to determine who the heirs are for a deceased person’s estate who died without a Will.
An heir is defined as “a person who succeeds, by the rules of law, to an estate in lands, tenements, or hereditaments, upon the death of his ancestor, by descent and right of relationship. In plain language, an heir is defined as who gets what and in what percentages from someone they are related to when they die without a Last Will & Testament.
The above pie charts are courtesy of Judge Russell Austin, Deceased, Harris County Probate Court No. 1, and my professor in law school.
The legal term “intestacy” is similar to heirship because it references and directs who gets what and in what percentages when someone dies without a Will. Ther terms heir and intestacy are inter-related.
Most often-times, an Heirship probate case is also accompanied by an Administration of the probate estate. Administration of an Intestate (i.e. a person who died without a Will) is the management and settlement of the estate by a person duly qualified and legally appointed, and usually involving (1) the collection of the decedent’s assets; (2) payment of debts and claims against him and expenses ; (3) distributing the remainder of the estate among those entitled thereto. The term Administration is applied broadly to legall mean the management of an estate by an Administrator.
When there is no Will, the personal representative of an estate is called an Administrator, and not Executor. An Executor can only be appointed through a Will.
The general steps of a Judicial Determination of Heirship are as follows:
- Filing of an Application for Judicial Determination of Heirship with the probate court in the County where the deceased lived at the time of death.
- Filing a Motion to Appoint an Attorney Ad Litem. The Attorney Ad Litem is a private probate attorney appointed by the Court to investigate the family structure of the deceased and to make sure all Heirs are properly identified and with the proper percentages of each type of property.
- Communicate with the Attorney Ad Litem and supply the Ad Litem with two disinterested witnesses who knew the deceased’s family structure.
- Your local probate attorney near you also prepares all documents for the hearing, including witness statements and the Judgment Declaring Heirship. A hearing is held in probate court for the Judge to make a declaration who the “heirs at law” are for the deceased. Those present at the hearing are generally the Applicant (i.e. the person who filed for the Heirship), the two witnesses, counsel for the Applicant, and the Attorney Ad Litem.
- Most heirships also involve an Administration as well. The procedure for administration is the same as the Probate of a Will (see Above) after the point of the signing of the Oath.
Connect with your local probate attorney today to assist with your heirship case by calling or messaging the Law Office of Troy M. Moore, PLLC to schedule your free consult today.
Small Estate Affidavit
A Small Estate Affidavit can be used in some estates where the deceased died without a Will, only had a homestead property, and $75,000 or less in non-exempt assets (exclusive of any value of the mortgage on the homestead residence).
The following is a flow chart representing when you can and cannot use a Small Estate Affidavit as a method of probate in Texas.
Probate by way of a Small Estate Affidavit in Texas is an effective and useful way to transfer assets from a deceased’s small estate to the heirs at law.
The above graphical representation displays some of its limitations. You cannot use a Small Estate Affidavit if the deceased had any real property interest in land, minerals, or otherwise other than the homestead residence. Second, the non-exempt assets must exceed the liabilities (e.g. debts).
The local Cypress & Northwest Houston probate attorney can explain to you (for free) whether your loved one’s estate qualifies for a Small Estate Affidavit in Texas.
Get in touch with us today to schedule your free, no-strings attached consultation on your probate case.
Alternatives to Probate
It is possible to avoid your own estate from needing to be probated by actions taken during your lifetime. If you set everything up to where financial assets and real estate assets are all taken care of ahead of time, then probate of your estate will not be necessary. Here are some common methods utilized to avoid probate.
- Payable on Death Designations with assets held in any financial institution;
- Joint Bank Accounts with Right of Survivorship. These bank accounts end up belonging to the last man/woman standing, who then becomes the outright owner of all assets in the account;
- Transferring real property during your lifetime. It is possible to simply transfer by Deed your real property to whomever you want to have it;
- Transfer on Death Deed — these can be utilized to set up, during your lifetime, a transfer of real estate upon death.
- Revocable Living Trusts — you can put your assets in to a Revocable Living Trust, thereby avoiding probate, since the Trust would then own the property, and not you individually.
Call us today for any assistance you may need setting up your Revodable Living Trust, or Transfer on Death Deed. Your local probate attorney in Northwest Houston / Cypress, Texas will be glad to assist you. We hope to hear from you soon.