Probate Law |
 When one dies, they either have a valid will or they do not. Dying with a will allows your beneficiaries and designees to probate your will. If you do not have a will, it is referred to as dying intestate and your heirs will be forced to have heirship legal proceedings.
L
Probate in Texas is relatively easy in most cases, assuming that there are no people arguing over the will or fighting about any other subject. To handle a probate in Texas, with a properly drafted will, it is a relatively simple process to file for probate, have a very short hearing in court, and have the will admitted to probate. This can be done along with an administration and involves minimal expense and time. The Court appoints the Executor or Administrator (generally the one named in the will) to handle selling and disposing of the estate property. An administration can be either dependent or independent. If it is independent then all that is required is to publish notice in a newspaper and file an inventory of the assets of the estate with the court. Most wills provide that the administration of the estate be independent.
There are a few ways to provide for the distribution of property to a person's heirs without going through the formal processes described above. Probating the will as a Muniment Of Title allows you to simply file the will to put it on record and obtain a court order to the effect that is the valid will of the decedent. Typically this is done when there are no debts of the estate and that there is nothing that requires the appointment of an administrator.
L
SMALL ESTATE - In some cases, if there is no will but it is a small estate and there are no disputes, the a Small Estate Affidavit can also be used if the value of the estate, excluding the homestead, exempt personal property, and non-probate assets, does not exceed $50,000.00. The assets of the estate, excluding the homestead and exempt personal property, must exceed the known liabilities of the estate. I generally advise my clients to check with banks, transfer agents, and title companies (if they are trying to sell real estate) to see if a small estate affidavit will be accepted. If it will, then then this will simplify the matter in a very inexpensive way; if it will not then you will have to use one of the other methods mentioned here.
HEIRSHIP PROCEEDING - When there is no will there may be a need for a determination of heirship. This is expensive and time consuming. The court is required to appoint an attorney ad litem to search for unknown heirs and to ensure that the documents are drafted appropriately. If there are unknown or incapacitated heirs, then the attorney ad litem is required to represent them in court. This process takes considerably longer and the applicant for the determination of heirship must pay for the attorney ad litem. The ad litem may be avoided if all heirs are known and they execute affidavits of heirship to identify who all the interested parties are.
Once the heirs are known then the court must appoint an administration to handle selling and disposing of the estate property. An administration can be either dependent or independent. If it is independent then all that is required is to publish notice in a newspaper and file an inventory of the assets of the estate with the court. The general rule is that if there is no will there will be a dependent administration but 100 percent of the heirs can agree to make it an independent administration assuming the court agrees with them. We generally advise that the heirs try to agree because dependent administration, is much more complicated and expensive. Not only is it necessary to keep detailed records and receipts of every transaction which will later have to be approved by the court, but every major transaction will have to be approved by the court. For example it takes three different court actions to sell real estate. The cost of a dependent administration can increase substantially very quickly. At the end of a dependent administration the estate needs to be closed out with the court and every transaction needs to be balanced to the last penny. |
Durkin Law Offices, P.C.
817-545-9700
817-545-5071 (fax) |
| |
| The Durkin Law Offices, P.C. handles cases in Dallas, Tarrant, Johnson, Hood, Denton, Wise, Parker, Clay and Wichita Counties including the Cities of Decatur, Hurst, Fort Worth, Arlington, Granbury, Weatherford, Azle, Irving, Grapevine, Coppell, Colleyville, Southlake, Burleson, Euless, Haltom City, North Richland Hills, Watauga, Farmers Branch, Keller and others. Other areas reviewed on a case by case basis. |
