Our deepest sympathies to you and your family — The last thing anyone wants to deal with after the passing of a loved one is the probate process.
We truly understand the emotional conflict that family members face during this difficult time. Our team is here to provide compassionate legal services to help families navigate the process of probate in the best way possible.
When an individual becomes deceased, their estate can enter the probate process. This process, facilitated by the Texas court system, determines what will happen with any property owned or owed by the deceased.
The probate process can be initiated by the “estate executor” or any other interested parties that may gain something from the will. It’s often required to prove the legitimacy of a will, assist in the accurate appraisal of assets, ensure debts and taxes are paid, and that the estate assets are distributed respectfully as per the deceased’s will and state law.
Going through the probate process can be helpful or detrimental, depending on the circumstances.
In situations where there was no will created, there is no estate executor, or the estate is very complex, probate may NOT be avoidable.
The state’s assistance in handling the estate; the appraisal and distribution of assets can be beneficial. But that isn’t always the case.
The probate process can involve countless meetings with attorneys and court proceedings that carry on for months or years after losing a loved one. The process can take a LONG time. Precious assets are tied up waiting to be distributed, and legal fees begin to stack up slowly being deducted from the estate’s total value.
The probate process can be avoided with a proper estate plan.
A person must initiate the probate process in order to begin.
The courts will respect the last will of the deceased. The person listed in the will as an “executor” or “personal representative” will be able to begin the probate process.
If there was no valid will established, the courts generally follow a standard order of hierarchy, beginning with the spouse of the deceased, then adult children, and so on.
When an individual is ready to initiate the probate process, they must have an attorney prepare the legal documentation and file with the probate court. Advance notice may need to be given to interested parties before the probate being officially opened, depending on circumstances within the family and the estate.
Be sure you are choosing the best probate process for the estate to reduce the amount of time spent in court and help bring closure to your family as soon as possible. If you need help navigating the probate process — Reach out to an experienced probate attorney at Stafford Law Firm.
In an ideal situation – The deceased individual would have created a detailed estate plan or had a will professionally be drafted before their death.
Once proven valid in court, a will would recognize the executor or personal representative based on the last recorded wishes of the deceased.
If the person appointed as an executor is unable or unwilling to serve, or if there is no will, probate courts will have to appoint another executor. This may be another family member, relative, trusted friend, or third-party professional.
In the state of Texas, reasonable compensation can be awarded to any executors for time spent administering the estate. However, the executor does not have to be paid. Oftentimes surviving spouses or family members will refuse to take any sort of payment for the estate’s handling.
Serving the role of an executor in the probate process is no simple task.
An executor is responsible for following comprehensive rules and procedures as per the Probate Code. There are also precise deadlines that must be met when filing papers through the courts or providing notice to all interested parties.
If the executor fails to comply with the strict probate rules or refuses to, they can be held personally liable for any loss incurred by the estate.
In some cases, if your loved one has left behind a trust, you will not have to go through the probate process.
But the trust must include all property owned by the deceased. To completely avoid probate, ALL assets must be appropriately titled in the name of the trust.
The truth is… Not all estate planning attorneys ensure that every asset is covered and that beneficiaries are appropriately designated.
It happens all too often. We see families that worked hard to do the right thing; they created a trust to prepare for the inevitable. When the time comes to administer the trust, they are shocked to learn that the trust is insufficient. Maybe the beneficiaries have not been adequately designated, or perhaps there were some important assets that were looked over.
Now the family is forced to enter the probate process against their deceased loved one’s best wishes.
How does this happen? Why does this happen?
Time can play a huge part in the validity of trusts. Over the years, a person’s assets change, state and federal laws change, and a trust becomes more and more outdated. It’s important to conduct regular reviews with your estate planning attorney. They can help ensure that your plan goes as planned.
Any asset that is owned solely by the deceased person can be subject to probate.
In the case of assets designated as “joint tenants with right of survivorship”, the assets may be passed to the surviving joint owner and may be able to avoid probate. In addition, any asset with a “transfer on death” or “pay on death” can follow the same process. Typically seen with life insurance and retirement accounts.
Unfortunately, it doesn’t always happen so smoothly. Even assets that were given a proper title or beneficiary designation may have to go through the probate process depending on the situation.
If you have questions about your specific situation, please get in touch with our experienced probate attorney.
Any assets that enter the probate process will be distributed according to the state law if there is no will or trust established to determine who will receive the assets.
This means the court will be deciding who gets what in the estate.
The normal chain of hierarchy would allow for the surviving spouse to be granted any of the assets that went into probate. Next, (if there is no surviving spouse) it would be divided among any children, then on to other relatives.
Nowadays, people have some complex family trees.
In a case when there is a living parent of the deceased person – If the surviving spouse is (a) not the parent of your children, or (b) there are no children, some states may split the estate between the living parent and the surviving spouse. Similarly, if the surviving spouse has children who were not your children, special formulas are used to determine who gets what.
You can’t always predict how the court will handle the probate — This is why it’s so important to make these plans for you and your family ahead of time.
A normal probate process takes about 6-12 months. This is for a simple, straightforward estate with minimal complexities. If beneficiaries are disputing over assets or property exists across multiple states, the process can take 2 years or longer.
As for the cost of probate, it’s difficult to predict precisely how much this can cost you as each situation can vary greatly.
Some typical probate costs to keep in mind are:
In some states, the costs are based on a percentage of the probate assets, and in others, the fees are as per the statutory schedule.
Your #1 chance at navigating through the probate process smoothly is with an experienced attorney.
How do you choose the right attorney?
One important thing to watch for is law firms that don’t specialize in probate, trusts, estate planning etc. An attorney whose primary focus is in another law area may overlook many additional complexities in a probate case. One small mistake can delay the entire process, costing you precious time and money.
You do NOT have to hire the same attorney that helped draft a trust or a will.
You have the right to shop around, find an attorney that you feel comfortable working with. Find one that gives you the confidence that they will do everything in their power to get you the best possible outcome.
Are you ready to begin the probate process?
It’s not easy — But with Stafford Law Firm by your side, you can rest assured the probate process will move ahead as quickly and efficiently as possible.
Allow us to take on the stress and worry of handling the courts while you focus on taking care of yourself and your family.
We are here for you through one of the most challenging times in your life.
The #1 way to avoid probate is careful estate planning. It can be an incredibly time-consuming and exhausting process for surviving heirs to handle after a loved one’s death. Some solutions commonly used are trusts and wills, drafted with detail and kept up to date.
“Rights of survivorship” must be established on any joint accounts to potentially avoid entering probate. In Texas, rights of survivorship are not established by default. It must be specified in the account paperwork upon creation.
Absolutely. Anytime an executor or personal representative begins the probate process, they must be represented by a lawyer. Keep in mind that executors can be held responsible for losses to the estate if they fail to comply with the rules, so it’s best to hire an experienced lawyer early on in the probate process.