If you are here to gather information about Texas probate after the passing of a loved one, we first want to say that we are very sorry for your loss.
Estate and Probate Administration are the processes through which estate assets are legally transferred from the deceased’s estate to the rightful heirs or beneficiaries after all creditors have been satisfied. Probate will be necessary if there are any assets in the name of the decedent which require a title transfer that cannot take place without court intervention. In other words, probate is a court-managed process where the assets of the deceased are managed and distributed.
Trust Administration is the process when your loved-one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased’s assets.
The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court. During the probate of someone’s estate the Court recognizes the person’s death and authorizes the administration of that person’s estate. The probate process applies whether someone died with or without a will.
Although every probate estate is unique most cases involve the following steps:
- Filing of an application/petition with the proper probate court.
- Notice to beneficiaries under the Will or to statutory heirs (if no Will exists).
- Application to appoint Executor (in the case of a Will) or Administrator for the estate.
- Notice to Creditors published as required.
- Inventory and Appraisement of estate assets by Executor/Administrator filed with the court.
- Payment of estate debts to rightful creditors.
- Sale of estate assets, if necessary.
- Payment of estate taxes, if applicable.
- Final distribution of assets to beneficiaries/heirs as direct by the will—or by the state law if there is no will.
An important thing to keep in mind is that probate administration tends to be significantly more expensive than creating a comprehensive estate plan when there are contestations or numerous creditors involved; it’s also can become very time-consuming, and it is completely public.
How much does probate cost?
The cost and duration of probate can vary substantially based on the value and complexity of the estate, the existence of a valid Will and the location of real property owned by the estate. Common expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds, if applicable. We typically charge a flat fee for handling probate matters, which varies from case to case, depending on the specific facts of each matter. Most estates can be settled through probate in about 6 to 18 months, assuming there is no litigation involved.
What is a “Will contestation”?
An objection to a Will, also known as a “Will contest” or “Will contestation” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate. Contestations usually occurs when, for example children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will. In addition to disputes over the tangible distributions, Will contests can also be a quarrel over the person designated to serve as Executor.
Does probate administer all property of the deceased?
Probate is primarily a process through which title to assets is transferred from the name of the deceased to the names of the beneficiaries.
Certain types of assets called “non-probate assets” do not go through probate. Examples include:
- Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law and do not go through probate.
- Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
- Life insurance policies.
- Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
- Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.
Does an Executor get paid for their services?
All legitimate out-of-pocket expenses incurred by Executors are reimbursed if they are a result of managing and distributing the deceased’s estate. In addition, Executors may be entitled to statutory fees (which vary from location to location and can vary depending on the size of the probate estate). Additionally, the Will may provide specifically for fees to be paid to the Executor. The role of Executor is not to be taken lightly, as he or she will have to adhere to certain fiduciary duties on behalf of the estate. The Executor is expected to apply the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is therefore advised that the Executor retain an attorney and an accountant to advise and assist the Executor with his or her duties.
Why use Trust Administration?
First and foremost Trust Administration is private. It is a process where probate generally can be avoided by the use of properly drafted and correctly funded trusts. There are many similarities with the Probate process, yet without court involvement. Some of the steps needed to administer the trust include: contacting the beneficiaries; gathering of assets, valuation, and management; notification of potential creditors; payment of debts, taxes, and final expenses; and, ultimately, any remaining income and assets must be distributed in compliance with the trust terms.
Generally, successor trustees often lack the time, knowledge or resources to personally administer the trust, and therefore may call upon legal, accounting and investment professionals for assistance. Oftentimes, a corporate fiduciary (e.g., a trust company) is an excellent alternative to relying solely on busy family members or friends to serve as trustee.
If you need help with Trust, Estate & Probate Administration, please contact our office and we will be happy to help you through the process.
GP Schoemakers, PLLC focus their practice on Estate Planning, Wills and Trusts of all degrees of complexity, Trust, Estate, Probate Administration & Business Entity Formation. They are also available to assist with Uncontested Divorces and Mediation. They serve clients throughout the greater Houston area, including, but not limited to League City, Webster, Clear Lake, Alvin, Dickinson, Pearland, Angleton, Houston, Bellaire, West University, Sugar Land, Missouri City, Richmond, Rosenberg, Katy, Cypress, The Woodlands, Kingwood and throughout Harris County, Fort Bend County, Montgomery County, Brazoria County and Galveston County.