Standard Probate Proceeding
A will must be presented for probate within four years from the decedent’s death. After the four years have lapsed the will may only be presented for limited purposes or under special circumstances. Failure to present a will within the four year statutory provisions would be a breach of the purpose for which the testator drafted the will.
When a client presents with a properly drafted and executed will the probate procedure will be simple and cost efficient. An Application for Probate and Issue of Letters Testamentary is filed with the probate clerk, with the appropriate filing fees. The application and will are posted for a ten day period after which time the attorney and usually the executor appear before the court to prove up the will and if successful then the will is admitted to probate. At the time of the hearing the attorney will offer to the court other pleadings including an Order Admitting Will to Probate.
Usually the attorney and the executor can go immediately from the probate court to the probate clerk and request Letters Testamentary. The Letters Testamentary is an official document issued by the court which authorizes the executor or executrix to collect and disburse the assets of the estate as well as negotiate and pay any remaining creditors of the estate.
Avoiding Probate
On occasions I will hear someone make the statement that they want to avoid probate. Usually they don’t have a clue why they want to avoid probate. On one occasion someone stated that probate was expensive. Of course no one wants to die and no wants their loved ones to die however death does occur and the legislature and courts provide for an efficient means of managing the final affairs of the estate for collecting assets, paying debts and disbursing the assets. The typical probate action of a properly drafted and executed will with little or no debts is a relatively inexpensive procedure.
The average estate is a non-taxable estate which means that the value of the estate is less than one million dollars or two million dollars for a married couple whose joint estate may be probated at the same time. So for a vast majority of Texans avoiding probate is an unfounded fear. For those Texans whose estates are substantial then there is a procedure for minimizing the necessity of probate.
Trusts
Texas statute provides for various trusts for different situations. Basically an individual or married couple with substantial assets can create a trust into which some, most or all of the asset can be transferred. The trust then holds the assets and is managed by trustees. The trust should always include a will for those assets not held in trust or in the event the trust fails for whatever reason. Trusts have certain tax consequences for which a tax consultant or accountant should be consulted.