Probate and Estate Law

Probate and Estate Civil Actions.

Anderson, Smith, Null & Stofer, LLP represents executors, trustees and beneficiaries in all aspects of probate and trust disputes and actions. We have extensive experience handling disputes ranging from beneficiary determinations to Will interpretations.

The Basics of Texas Estate Administration

Estate administration, after a person’s (“decedent’s”) death, is the set of tasks to wrap up a decedent’s affairs and transfer their assets out of the decedent’s name to whom are left the assets. Particulars vary with the size and complexity of the estate, as well as the quality of the decedent’s estate plans. The usual steps include marshalling assets, paying debts and then distributing the assets.

Most people will need to hire a lawyer (for probate court) and an accountant (for income tax returns).

Getting Started

It is usually safe to wait several weeks to a month after the decedent’s death before starting. In the meantime:

• Ask your funeral director for death certificates. One for each financial account and life insurance policy to be collected, one for you, and one for your lawyer may be enough. To be safe, most people order six or so as some institutions will take copies of a death certificate.
• Call decedent’s insurance agent, confirm adequate property and casualty insurance coverage is in force on all of decedent’s assets, and calendar the dates and amounts of the next premium payments. It’s customary to leave decedent’s name on homeowners’ and automobile policies until the asset is distributed.
• Call decedent’s financial advisor. Ask if decedent was doing anything with his investments that require immediate attention.
• Locate the original Will and keep it safe.
• If there are debts, please tell debt collectors that the estate has not opened yet. That answer will hold most of them the first few months. Do pay insurance and utility bills.

When ready, please contact an experienced estate planning and probate lawyer. If there is a Will, the executor normally contacts the probate lawyer. Also speak with an accountant about decedent’s final income tax return. The same one can prepare the estate’s income tax returns, if necessary, but ask if he or she is comfortable with preparing IRS Form 1041 fiduciary income tax returns. If not, your lawyer can help you find an accountant who is comfortable in preparing these type of tax returns.

Decedent’s Estate; Transferring Title to Beneficiaries

An decedent’s estate consists of nonprobate and probate assets.

A death certificate is normally enough to transfer title to beneficiaries and collect “nonprobate assets” because these assets pass by written beneficiary designations given by the decedent to the financial institutions holding the assets. Common nonprobate assets are life insurance policies, annuities, IRA’s, 401K’s, other type of retirement accounts, and other accounts with designated beneficiaries.

A death certificate is not enough to transfer title and collect “probate assets.” A typical decedent’s probate estate includes a house, household goods, vehicles, mineral interests and other real estate, stock or other investments, bank accounts and certificates of deposit. Small businesses tend to be probate assets, too. Probate, when necessary, allows title to these assets to be transferred to the beneficiaries. However, a probate is not always necessary to transfer title to certain assets such as household goods and personal belongings, real estate, mineral interests, vehicles, or manufactured homes so whether probate is necessary depends on what assets a decedent owns at his/her death.

Why Probate?

Probate is the court process, when necessary, where an order is obtained from a probate court so that probate assets can be collected and transferred to whom are to receive those assets. The probate process involves proving the existence of a valid will or determining who the decedent’s legal heirs are if there is no will.

A properly executed Will can be filed with the probate court and a court order can normally be obtained relatively easily within 20 days after filing, following a brief hearing to authenticate that the decedent’s will is valid and was executed properly. The probate court order also confirms the appointment of the Independent Executor, named by the decedent in the Will, to administer the decedent’s estate. This system is relatively inexpensively and very efficient in Texas when a properly executed Will has been signed by the decedent.

When decedent dies without a will, the transferring of title to assets may be more difficult if it involves transferring probate assets that need a court order from a probate court before title can be transferred to the heirs. There may need to be a court hearing in the probate court to determine the heirs and also an administrator may need to be appointed by the court to administer the decedent’s estate, if necessary. In the case where a decedent dies without a will, probate assets pass to the persons outlined under the laws of the State of Texas.

Conclusion

With an experienced probate lawyer, most estates can have most of their assets transferred to the decedent’s beneficiaries within several months after the decedent’s death. Most of the time, the efficiency of the transfer of title process is related to how well the decedent signed proper estate planning documents ahead of his/her death.