When it comes to matters of probate in the State of Texas, it is highly recommended that loved ones of the deceased enlist the help of a reputable and experienced attorney to facilitate the probate process in the most efficient manner possible. In many cases Texas courts can require an executor to be represented by a probate attorney to better protect their own rights and those of beneficiaries. For all things will and probate, it is essential to find legal representation with experience and a proven track record in probate court.
A Word About Wills, The Basis of Probate Court
When talking about wills in Texas, there are two primary scenarios loved ones of a deceased with a will should be familiar with:
- Will Admission
- Will Contestation
Regardless of which of these categories is most pertinent to an individual’s specific situation, there are several steps that are the same in the beginning of the process:
- Application for Probate. After an individual who has a will already in place passes, an application for probate should be filed in a probate court within the county of the deceased’s residence. Most hearings are scheduled approximately two weeks from this date.
- During the two weeks before a hearing, the county’s clerk is required to post a notice at the courthouse to alert any parties who may wish to contest the will.
If no parties come forth to contest a will, the probate proceedings can usually continue without interruption. The executor of the will may be required to answer some basic questions regarding the deceased’s family life and residence at a hearing. They are then usually asked to sign an oath promising to do due diligence while acting in the capacity of executor.
In the case that a will is contested, the individual contesting the will must prove they are “interested person” as defined by Texas law. The contestant must also have valid grounds for contesting a will which can include situations such as:
- Lack of testamentary capacity
- Undue influence
A reputable probate attorney’s expertise can be invaluable for cases of will admission and will contestation via will validity, no-contest clauses, contestations, draft pleadings and more.
Dying Intestate or Dying Without A Will
The term intestate refers to the situation of an individual dying without a will in place. Without a will that documents heirs and beneficiaries, state law may then distribute the estate according to Texas probate code. Under this code, separate property and community property are defined differently.
Separate property is defined as:
- Property of the deceased that was given to them via marriage or inheritance
- Property owned by the deceased before a marriage
Community property then becomes property obtained during the course of a marriage that was not considered a gift or inheritance.
If someone dies intestate, the following scenarios are most common:
- Deceased is survived by a spouse and children
- Deceased is survived by a spouse but no children/descendants
- Deceased is survived by children only
- Deceased is survived by no spouse or children/descendants
In each of these situations Texas probate code clearly defines the guidelines for bequeathing separate and community personal property and land. To best determine who lawfully counts as a survivor and beneficiary, the court can appoint an attorney ad litem to thoroughly investigate family history via genealogical research and identify true heirs.
Wills and Muniment of Title
In the situation where an estate does not have any unsecured debts and only cash and real property for assets, a Muniment of Title may be appropriate. A will that is probated as a Muniment of Title is often considered a more convenient type of probate as it does not require an executor or administrator. However, it can only be processed as such when it has been longer than four years after the deceased’s passing.
If a will is used as a Muniment of Title, it has the capacity to transfer the ownership of the deceased’s property without an additional personal representative such as an estate’s executor and administrator.
Trust Litigation Receivership
A trust is designed to provide for a deceased’s beneficiaries while sparing them from spending excessive amounts of time in probate court.
However, in a case where an individual is involved in a suspected breach of trust or trust dispute, designating a receivership can be a way to temporarily protect their assets. Under these specific circumstances, an independent third party may be utilized to manage assets until a trial takes place.
Essentially, this act takes any notable power away from parties involved in a trust dispute and gives it to the independent third party. Because of the transfer of power, designating a receivership is a significant responsibility and should not be entered into lightly.
Receiverships can be terminated by a court that rules a trustee can continue on with their work or a new trustee is appointed.
If you or a loved one have recently experienced the loss of a family member and have questions about probate proceedings, please reach out to the probate attorneys at law at Harold “Hap” May, P.C. to discuss those questions and concerns.