What to expect during Probate

One thing that we hate to see is families splitting up and fighting over the assets of their loved ones who have passed away.  We hear all the time that brothers and sisters are suing each other because they felt deceived, didn’t get what they want, or someone took advantage of their family member right before they passed away. THIS IS NOT WHAT ANYONE WANTS! So be prepared for what happens next.

Below is information about the probate process and what will happen to all of a person’s assets after someone passes away.

Probate

Probate is the legal process of gathering the assets of a deceased person and distributing them to that person’s beneficiaries. During probate, your executor will be in charge of preparing an inventory of your estate’s assets and managing the assets so they can be distributed.

A court typically oversees the process to resolve any questions and disputes that might come up, make sure your remaining debts are paid, and ensure that your property is passed on to the right people or organizations.

Many people think that you do not have to go to probate if you have a will.  Whether you have a will or not, your estate could go to probate court. If you have a will, this usually begins with the authentication of your will and formal appointment of your executor.

A will speeds up the process and makes your wishes known. However, if you die without a will, the state starts by naming a personal representative (or administrator) for you. Most of the time, your surviving spouse or one of your adult children will get this job. Until the court appoints a representative, your assets will be frozen. And if no one wants to handle your estate, the courts will name a public trustee to distribute your assets.

The judge in probate court will refer to local laws to make decisions about the distribution of your estate. The probate process can be slow and expensive with guidelines varying widely from state to state. And it gets even more complicated when you have an especially large or complex estate.

If you have a small estate, a living trust, joint property, accounts that are payable-on-death, or have given assets away before your death, your estate might be able to avoid intestacy proceedings. Despite this, it’s still a good idea to make a will — no matter the size of your estate. With a will, you can make sure that your loved ones and pets are taken care of after you’re gone.

Here’s a small overview of what happens during the probate process:

1. Someone, usually your executor or a family member, files your will (if you had one). In Texas, they have four years from the date of death to file your will.
2. The court validates your will.
3. The court appoints a representative, or executor, to oversee your estate.
4. Your executor identifies your assets and debts and contacts your beneficiaries and creditors to notify them of your passing.
5. Your executor pays any of your debts, usually with money from your estate.
6. Your executor distributes assets to your beneficiaries, according to the wishes outlined in your will. If you didn’t have a will, your assets are distributed based on Texas’s intestate laws.

Texas Intestate Order of Succession

If you die without a will in Texas, who inherits what you leave behind? Here’s the typical order of succession, according to the Texas Estates Code:

• If you’re married without children, parents, or siblings, your spouse will inherit your estate.
• If you’re not married and have children, your children will inherit your estate (usually in equal shares). Under Texas law, your “children” are defined as your blood or adopted descendants. Any foster children or stepchildren you have aren’t legally considered your children and aren’t entitled to part of your estate.
• If you’re married with children who you share with your spouse:
  • Your spouse inherits all community property and ⅓ of your personal property
  • Your children inherit your remaining personal property
• If you’re married and have children with someone other than your spouse:
  • Your spouse inherits ½ of the community property and ⅓ of your personal property
  • Your children inherit your half of the community property and the other ⅔ of your personal property
• If you’re not married and have no children or immediate family, your estate will be divided among any living extended family, including grandparents, aunts, uncles, and cousins.
• If the court can’t find any living relatives by blood or marriage, the state of Texas will inherit your property as a last resort.

When you die without a will, you leave important decisions about your legacy in the hands of your local court and state laws. Learn more about how dying without a will can impact the people you love.

This information is to help families get an idea of what to expect when a loved one passes away in hopes to help them prepare for these circumstances.  This is not to be taken as legal advice.  Laws are always changing and they vary from state to state.

There are many ways to do these processes on your own without legal counsel, but we have seen many families try and overcome small mistakes that have been made or lawsuits from family members who disagree or feel like their loved ones had been taken advantage of in a state of weakness.  So, we do encourage legal counsel when making preparations on your estate.