Answers to questions on Probate

 What is probate?

Probate is settling your affairs. It is proving that the Will is yous or, without a Will, who the heirs are. That’s all. With a properly drafted and executed Will, the person you name to do this only needs to go to court once: to be appointed and to pick up the Letters Testamentary which give her legal control of your property.

Can I avoid probate?

No. A Revocable Living Trust can have many benefits, but your affairs must still be settled: the expenses of your last illness, the cost of handling your earthly remains and any outstanding taxes must be paid. Probate “proves” that has been done.

Is probate expensive?

It does not have to be. In Texas, a properly written Will can name an executor who will serve without bond in an “independent administration,” which means independent of court supervision. The executor takes the will and death certificate to court, answers half a dozen simple questions and receives Letters Testamentary empowering him to settle your affairs. He must inventory your assets, notify your heirs and creditors.

Is probate time-consuming?

It does not have to be. In Central Texas, with a properly drafted and executed Will your executor can get into court within a month and be done thereafter – if there are no disputes.

Answers to questions on Wills

What is a will?

When properly executed, your will determines who receives what from your estate by way of distribution when you pass away. It will also name who shall be responsible for administering your estate, who will care for your children upon your passing and express your wishes in respect of certain arrangements, such as your funeral wishes. It is possible to write your own will but we would always recommend seeking legal advice, as it is easy to make mistakes which may mean your will is invalid.

 

Can my executor or witness be my beneficiary?

Your executor can be a beneficiary under your will. A witness cannot also be a beneficiary – this may result in an invalid distribution.

 I made a will years ago, do I need a new will?

You may require a new will and it is always best to review your will every 2 – 5 years.  Life and circumstances have a habit of changing, as well as tax rules! An older will may not reflect the most tax efficient way of dealing with your estate. If you wrote your own will, you may want have it reviewed by a Wills and Probate lawyer.

I wish to exclude one of my children from my will, can I do this?

You can include or exclude anyone you wish from your will.  You will need to consider any potential future claims on your estate depending on how this is distributed.  There are ways that you can mitigate any potential claims and so legal advice is advisable, even if you are considering writing your own will. Will validity is all the more important for this reason.

My executor has died, do I need a new will?

You can have a codicil prepared naming new executors. Our advice is to have your will checked regularly and be sure you are still happy with the people to whom you have allocated this important role.

Answers to questions on Executors

Am I required to accept the appointment as an executor?

Being appointed as executor does not mean you have to accept. You may renounce your appointment, in which case the alternate executor named in the decedent’s Will can become the executor.  If there is no alternate an “administrator” will be appointed in conformity with state laws.

As an executor am I personally liable for the debts of the decedent?

As long as the executor  properly administers the estate according to the law, he or she will not be held personally liable for any debts owed by the decedent.

Am I entitled to compensation for acting as an executor?

Yes, you are entitled to reasonable compensation. Keep in mind that you will have to pay income tax on the compensation you receive from the Estate because it is income you earned.  If anyone complains that your fee is excessive  the amount is subject to review by the Court

How long will it take for my work as executor to be completed?

Although there is no definite answer to this question, the average estate administration takes approximately one year.  Some estates may be concluded is less time and some estates may take longer.  In most cases, the size of the estate and the type of assets in the estate dictate the time frame. Inheritance taxes are due 9 months after the date of death.

Get Help

Our attorneys are ready to further assist you with all the help and answers you need regarding Probate, Wills and Executors. Call us today.

FAQs

Can I sell the deceased’s house?

If the estate contains any property it can be marketed but cannot be sold before a Grant of Probate is given.

 How do I transfer the ownership of the property without selling it?

The Executors or Personal Representatives of the Estate will be able to transfer the ownership of the Deceased property in accordance with the Will or Rules of Intestacy.

I wrote my own will, is it valid?

It could be, Yes, but if you write your own will, by the time any mistakes come to light it will be too late for you to rectify any problems as you will no longer be with us.