Key Things to Know About Probate When a Loved One Dies
By Lori A. Leu & Erin W. Peirce, Texas LIVING WELL Magazines
Have you ever heard someone ask whether a Will or an estate has been “probated,” and wondered, “What is probate?” The term “probate” refers to the judicial procedure wherein a Will is proven to be valid. Over time, the term “probate” has evolved to refer to the legal process in which the estate (everything owned at the time of death) of a deceased person, called the “decedent” is administered, whether or not the person had a Will.
A common misconception is that probate is difficult and expensive. In most Texas counties, if there is a Will, the probate process is relatively simple and quick. Simple probates can be completed in a matter of weeks, requiring only a short hearing and the filing of a couple of documents with the court. If there is a dispute about the validity of the Will, then the probate court hears the dispute and makes a determination. If there is no Will, the administration of the decedent’s estate Will probably take longer and be more costly.
No one likes to talk about death or what happens after someone dies. There are many misconceptions about how to handle a decedent’s estate, merely due to lack of information. For example, many people believe that the existence of a Will prevents the need for probate, but that is incorrect. In order for any inheritance to be transferred, the Will must be admitted to probate and proven to be valid. Many people think probating the Will is unnecessary since the Will distributes the estate. Legally, nothing can be distributed under a Will until a court has determined that the Will is valid and has appointed a personal representative (“executor” if named in the Will, “administrator” if not).
Sometimes surviving spouses fail to probate the Will of the deceased spouse, based on a common misconception that the asset passes directly to the surviving spouse, without the need for probate. Later, the surviving spouse may discover that he or she cannot sell the home or transfer title to some other asset until the estate of the deceased spouse is probated. And, if more than four years has passed since the death of the spouse, the Will can no longer be admitted to probate. At that point, the estate must be probated as if no Will existed.
Some people believe that once a loved one dies, they are authorized to distribute the estate if they are the named executor in the Will. In order to have authority to act, an executor must be appointed by a probate court and issued a document indicating the executor’s authority, called “Letters Testamentary.” To be appointed executor of an estate, the person named in the Will must be qualified under the laws of the state of Texas. An executor is not qualified to serve if he has been convicted of a felony, is a non-resident of the State of Texas, is a corporation, or is otherwise unsuitable. Letters Testamentary are issued by the probate court to the executor once the executor is appointed, takes an oath, and posts a bond. An executor must post a bond, unless expressly waived in the Will. This helps protect the estate from dishonest executors.
Once Letters Testamentary are issued, the executor can exercise control over and maintain the assets of the estate. The decedent’s estate remains responsible for paying creditors, if the creditors file acceptable claims with the probate court, and if there are sufficient assets in the estate. The executor Will be held responsible for paying creditors, so it is recommended that the money for the decedent’s debts be paid or set aside prior to distributing the estate.
Unfortunately, dealing with the probate of a loved one’s estate falls right at the time when people are grieving. Because the probate rules require the involvement of an attorney, it is advisable to seek legal counsel as soon as possible following the death of a loved one. Let your attorney handle the details related to the estate so you can spend time with your family, celebrating the life of your loved one.
Lori A. Leu and Erin W. Peirce are elder law attorneys with Lori A. Leu & Associates in Plano, Texas. They can be reached at 972-996-2540.
NORTH DALLAS & DENTON
Lori A. Leu and Erin W. Peirce are elder law attorneys with Lori A. Leu & Associates in the North Dallas area. They can be reached at 972-996-2540.