The death of a parent or spouse can be a devastating loss. Even an expected death after a long illness can be a traumatic experience for the family. After the initial shock wears off, the next question is “What am I supposed to do now?”
For many families the answer is they need to probate the deceased person’s estate. “Probate” refers to the process of a court recognizing the person’s death and appointing someone to administer the estate or execute the instructions in your will.
Most probate cases involve presenting the deceased person’s will to the court and asking the judge to appoint a person – usually someone named in the will – to be named executor of the estate. The executor’s job is to gather all estate assets, identify and pay debts lawfully owed to creditors, and distribute what’s left to the beneficiaries named in the will. Typically, the will must be filed for probate within 4 years after the death.
There are numerous different types of probate proceedings. Not everyone has a will. Some people die without a will and leave behind significant debts. Others die leaving a will, but they owned little property other than their home and their bank accounts and had no debts. Others had a valid will, but the family members did not file it for probate within 4 years. Each different scenario requires a different strategy to pass on assets and minimize exposure to creditors.
The Michels Law Firm can tailor a probate strategy for your family that will help relieve stress during an already difficult time. Some of the probate issues we handle are:
- Probate of a Will and Appointment of Independent Executor
- Dependent and Independent Administrations of Estates where there is no will
- Affidavits of Heirship
- Muniments of Title
- Small Estates Affidavit
- Will Contests
- Orders for No Administration
- Informal Administration of Community Property
What Is Probate And What Actually Leads To Probate? Is It Such A Horrible Thing Like We Hear About?
Key Takeaways:
- Probate a court-supervised process of certifying wills and distributing a deceased person’s assets (with or without a will).
- The probate process arose because people tried to fool title companies and rich families with false documents, issuing sales for things they did not in fact own. As a result, these companies and families got the court system involved in the process of authenticating who has the right to distribute the deceased’s assets.
- It is never a good idea for a person to set up their own estate planning documents, and it is very rarely a good idea for a person to go through the probate process on their own, without the help of an attorney. The law is very particular and requires specialized knowledge.
Probate is a court supervised method of distributing a dead person’s assets.
Quite frankly, probate came about in the first place in large part because title companies and rich families would get scammed. Someone would come up to a rich family or title company and say, “My dad died, and he owned one plaza downtown, and I need to sell it now.” Even though the person would present them with all kinds of documents that looked like they showed his dad owning one plaza, and they had a will, it was all a lie.
Therefore, title companies, mortgage companies, and banks—supported by rich families—decided that they were tired of getting caught up in the scams, and they were tired of having to spend a lot of time investigating whether something was a scammer or not, and they basically got the court system involved and place that burden on a judge.
In the probate process, somebody—an “executor”—has to stand up and swear to certain basic facts under oath. For example, “I really was married to my wife, and she really has passed away, and this really is her will.”
Once that person has testified and has qualified to serve as the executor of the will, that person has a court order that says “The court in the state of Texas has determined that This Executor gets to handle his wife’s estate”.
This drastically reduces if not fully eliminates the fear of not dealing with the right people when distributing a deceased person’s estate.
Is It Ever A Good Idea For Anyone To Try And Set Up Their Own Estate Planning Documents, Or Try To Navigate Probate On Their Own Without An Attorney?
No, I do not think it is ever a good idea for someone to try and set up their own estate planning documents or navigate their own probate without an attorney.
Of course, you can get online forms and try it yourself, but for every three clients who have come to me with online forms, two of them have been entirely inappropriate, invalid, and unusable.
There is usually some massive problem that a layperson would not know how to spot in documents filled out by laypeople. They either didn’t fill the forms out right, or they didn’t use the right words to describe what they were trying to accomplish, or some other major problem with the documents that would make them unusable or so difficult to use that they would basically be harder to use than nothing at all.
Notably, when there is a problem with these forms, it can be completely disastrous for the estate in question. If an estate planning document is not valid, then it is not valid. It cannot be used. If it’s the only estate planning document in a person’s estate, you will wind up deferring to the statutory laws (i.e., the state’s basic starting point for estate planning matters), which seldom is in accordance with the person’s wishes.
This really is one of these areas where the law is very complex and particular. The laws dictating who gets what when somebody includes a myriad of qualifiers, exceptions and exemptions. If you don’t know what those are, you won’t know how to draft what you need.
For more information Probate Process in The State Of Texas, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (281) 210-1596 today.
