Regardless of the size of your estate, what you own, or what your family circumstances may be, a comprehensive estate plan is an essential tool for everyone. It is a “life-plan,” and does not just concern what happens to your assets when you pass away. It is motivated out of love for family, friends, and personal causes.
Comprehensive Estate Planning Allows You To:
- maintain control over your person and affairs while you are alive and well, and have a contingency plan if you become mentally disabled
- avoid unnecessary placement in a nursing home
- control which family members make decisions for you if you are disabled
- provide security to loved ones, including future generations, and those who are dependent upon you
- avoid conflict and legal disputes at death
- transfer wealth to loved ones with as much or as little control as they may need and as you desire
- plan for assets owned in other states
- achieve your charitable goals
- coordinate your retirement planning, business planning, insurance and financial planning with your estate plan
- save every possible administrative expense, transfer cost, tax dollar, attorney fee and court cost you can
Already Have a Plan? Is it up to date?
You should review your plan every few years. Changes in life circumstances, and changes in state or federal laws may frustrate the success of your plan, or create new planning opportunities to benefit you. You may think your current estate plan allows for these changes. But, your plan may be woefully out-of-date and fail when it is most needed.
What is Probate?
When someone dies owning Texas land, including oil, gas and mineral interests, these assets and everything else they own – cash, stocks, bonds, life insurance, retirement accounts, cars, household goods — comprises their estate. That person’s estate must be distributed to the heirs after a process of administration known as probate. The purpose of probate administration is to protect the rights of the family, including heirs who are entitled to receive the estate, and to pay the creditors of the one who passed (the “decedent”).
Probate is the process by which a Court formally recognizes the decedent’s death and authorizes a qualified person, known as an executor or an administrator, to administer the decedent’s estate.
Some people believe that if they signed a last will and testament then their estate won’t pass through probate. However, having a will guarantees probate. The probate process also applies when someone dies without a will.
Whenever land is part of the estate, completing the probate process:
- helps ensure that the heirs will take title to the land correctly,
- establishes a clear chain of title in the deed records of the county where the land is located,
- avoids future problems conveying the property,
- and prohibits creditors from later attempting to put liens on the land to satisfy the decedent’s debts.
Starting the Probate Process
Initiating the probate process is easy. Whether or not the person died with a Will, an Application for probate will need to be filed in a Texas Probate Court, usually within four years from the date of death. The person named in the will as executor usually files this Application. If there is no will then any interested party, including a creditor or a surviving spouse, can file the Application.
After the Application has been filed there is a two week waiting period during which the county clerk posts notice at the courthouse that an Application for probate is pending. This posting provides notice to anyone who might want to contest the will or administration. After the waiting period, Texas probate law requires a court hearing.
If the person died with a will, the court must determine that the will is the decedent’s true last and valid will, and formally appoint the named executor to administer the probate estate.
If the person died without a will, the court must determine who are the heirs entitled to receive the property, and formally appoint an estate administrator. Dying without a will risks that the land may pass to undesired heirs instead of those the decedent intended because the land will pass under the strict scheme contained in the Texas intestacy laws. Dying without a will is the most expensive, time-consuming and difficult process for heirs attempting to secure their title to land.
Steps in the Texas Probate Process
The Texas Probate Code requires that executors and administrators in any probate proceeding complete two requirements:
1. Publish notice to the creditors that they must file any claims against the estate if they want to be repaid for their outstanding debt
2. File an inventory of the estate assets
If the decedent died without a will, the court will make a formal determination as to the identity of the decedent’s heirs.
The executor or administrator must work through any claims presented to the probate estate for payment, and determine which claims are valid and necessary to pay, and which claims can be denied. The assets remaining in the estate after payment of claims, debts and expenses are distributed to either a) the beneficiaries listed in the will or b) the heirs determined by the court, if there was no will. If the family members of the decedent engage in a fight over the assets of the estate, the court will hear that dispute and resolve whatever issues may exist.
Probate can sometimes be avoided or simplified by having a professional estate plan (which I will discuss in my next blog),but the process itself is often not difficult or expensive, and usually offers the best solution to protecting the rights of the family to lands they are entitled to receive.
Getting Started– Gather Your Information
Some clients appreciate the opportunity to gather together and organize all their personal and financial information at the start of the planning process. Other clients simply want to get their questions answered and need time to think. Some clients know exactly what they want to do and just need a little help to implement their plan. In most cases, you can save time and money in the preparation of your estate plan by gathering information on your own before approaching an attorney.
To assist you in this process, download our Estate Planning Worksheet.
The Braun & Gresham Difference
At Braun & Gresham, PLLC, we use a wide variety of tools to accomplish your estate planning goals, such as wills, living trusts, medical and financial powers of attorney and other disability- planning documents, limited liability companies, family limited partnerships, buy-sell agreements, charitable trusts, donor advised funds, conservation easements and many other strategies.
We’ll help educate you about these various strategies, and together, identify which fit your circumstances best. Using the innovative and versatile estate planning solutions that Braun & Gresham is known for, we’ll create the most practical solutions and apply them in a comprehensive plan to achieve your vision for your family and assets.
No Obligation Initial Consultation
The thought of wrestling with all the issues involved in planning your estate can sometimes seem daunting. That’s why we offer you the opportunity to meet with us for an initial one-hour consultation, at no cost or obligation, to see how we can best assist you. We will review your family circumstances, your assets and goals, explain any issues we see, and make initial recommendations regarding which strategies and techniques meet your unique needs.
For the peace of mind that comprehensive estate planning can bring, contact Margaret Menicucci, an experienced estate planning attorney at (512)894-5426.