The question of whether or not to hire an attorney for any estate planning or probate-related matter is the most fundamental aspect of any discussion or consideration that you must go through to begin a case. We can spend a great deal of time talking about procedural issues, hearings, planning, and all of the other factors that appear in a case like the one that you may be on the verge of becoming involved in. We will discuss many of those topics in today’s blog post, by the way. With that said, you need to determine whether or not hiring a probate attorney is right for you and your circumstances.
To begin with, hiring a probate attorney has to provide you with some sort of benefit to justify the time of interviewing potential attorneys, hiring the attorney, and paying the attorney’s fees. You need to be aware of not only what a probate case entails but how hiring an attorney justifies all of these factors and puts you in a better position than you would be without the assistance of an attorney. What does an attorney do for you beyond the help provided in the courtroom?
Let’s say that you are named as the executor to a loved one’s estate in their will. You were made aware of this by your loved one before he or she passed away. While you attempted to perform some basic amount of research into what it meant to be the executor of an estate you still have many questions that have been left unanswered. For instance, do you need to probate the will or can you simply divide up the assets as you see fit according to the wheels terms? How do you notify creditors, if any, in allowing them an opportunity to present to you what they claim maybe?
These are all relevant and reasonable questions to ask. You can read through all of the blog posts and informational articles on the Internet about the probate process and that will still not adequately prepare you to know everything there is to know about probate law and probating a will. Additionally, if your loved one died without a will and you either need to seek representation as to the spouse of the deceased or as they’ve potential air then a probate lawyer may be someone that you need to contact. Again, you can read all the general articles that you want about this subject but your circumstances may be entirely different than those presented on the Internet.
To begin with, an experienced probate attorney can help you remain organized if you are acting as the executor of a loved one’s will. As we are about to see, there is a specific process that you must follow in Texas to probate a will. Each probate court in Texas has different requirements and you must be aware of each of those requirements. The failure to be aware of any of them may result in improper filings and can delay the probate process significantly. As with many things in life, time is money when it comes to a probate case. By spending more time in the court you are utilizing the property that could have been paid 2 creditors or distributed to beneficiaries.
An attorney who practices probate law will help you to identify the important circumstances of your case, begin preparing an inventory of your loved ones’ property animal assists in preparing for the filing of paperwork in a petition to probate your loved ones’ will. These are serious responsibilities that must be followed through exactly according to the terms of your probate court. Rather than you spending a great deal of your own time researching and learning each subject, your attorney can handle the procedural matters while keeping you abreast of the issues which will allow you to make decisions that will allow you to execute on the wishes of your loved one and efficiently finalize the proceedings.
Acting intentionally is an important part of the legal process. If you are charged with the hefty responsibility of executing loved ones will then you need to have a plan on which to proceed from. Simply having a good-natured attitude and a desire to do right by your loved one is insufficient in this regard. Therefore, you must be able to develop a plan of attack and come prepared once any court proceedings begin in your probate case.
Let’s walk through the typical steps of a probate case and we can see just how having a probate attorney by your side to assist you can not only justify the cost of hiring the attorney but can provide a benefit to you, the beneficiaries, and creditors of your loved one and can honor the memory of your loved one, as well.
The first hearing in a probate case
At the first hearing in a probate case, also known as an initial hearing, you would be put under oath if you are to give testimony regarding anything having to do with the probate application. Again, you need to be able to perform the research necessary to figure out where the proper venues for this hearing. Likely, it would be in the County where your loved one resided, passed away, or lived most of their life.
Depending on the County where the application for probate was filed you should be prepared to either be in a somewhat crowded courtroom, obviously bearing covid into mind these days, or you could even be in the office over the judge. I have seen different counties all different sorts of hearings. Usually, the small counties would allow for more Internet sitting with the judge while larger counties may require you to be one of several cases on the docket for the judge that day. These are the sort of circumstances that you can’t help but you can be aware of them so as not to be surprised by the surroundings you find yourself in your initial hearing.
Once your initial hearing is complete you would go to the probate clerk’s office and obtain either letters testamentary if your loved one has a will or letters of administration if you’re administering the estate of a loved one who passed without a will. These documents will allow you to go to banks, investment brokerages, and other locations to handle the business aspects of your loved one’s estate. A form will be signed by you that gives notice to any creditor of your loved one. Or notice will likely be published in any newspaper that has high circulation in the area where your loved one passed away.
There are also some basic requirements that you must be able to prove to a probate court to move forward with the application to probate a will or in a state. First, he must show that your loved one is deceased. This may seem like a silly thing to have to prove but the reality is that a certificate of death must be prepared and be made available to the court. The certificate of death will be reviewed by the judge and placed into the official record of the case.
One of the deadlines or procedural issues that you must be aware of when it comes to administering the will of a deceased loved one is that there is a deadline for doing so after the date on which your loved one passes away. Specifically, it must not have been more than four years after the date your loved one passed before your application is filed. If you waited more than four years after the date of death then the world will not be deemed as valid and an administration will occur of your loved ones a state as if he or she died without one.
As I mentioned at the outset of today’s blog post, it is also very important to determine whether or not the court where you filed your application for probate has jurisdiction over the case. Jurisdiction means that the court has the right to make decisions to administer the will according to its terms. Once the court determines it has authority then you will know the venue in which you must proceed. Again, failing to file for probate in the correct court can take time and money off the table.
I think it can be helpful for you to learn more about but some of the possible outcomes of this initial hearing might be. The last thing you want to happen is to be confused or surprised at the result of a hearing. Especially an initial hearing where the tone for your entire case can be set. Therefore, I would like to walk you through the potential outcomes of a case so we can determine what could end up happening so you can better prepare for those outcomes.
Outcome number one would be that your loved ones’ will is deemed to be valid and that there are no folks who attempted to intercede or contest the will. This is an ideal situation that would allow the initial hearing to go rather smoothly. You would be asked questions by the judge regarding your loved one such as where he or she resided before their passing, whether or not he or she had children and if the signature on the will matches their normal signature. Once the judge approves the will for probate then you will need to sign off on documents that allow you to act as executor or administer the estate if no will is in place.
Another outcome that could be possible in your situation is regarding no will being in place. The most significant difference between this outcome and the one we just finished discussing is that the court will need to have an attorney at Litem be appointed to the case to perform research into locating any potential errors of your loved one. The attorney ad litem will conduct research and attempt to locate any errors so that they can be given notice of the hearing. You should also begin to think about people who can testify to your loved ones’ state at the time of their death including where he or she resided and basic biographical information.
These are the most likely outcomes that you will encounter in an initial hearing. The fact is that most of the time a court will give you a great deal of latitude on how to process the administration of the will or a state if no will is in place. An independent administration allows you to minimize costs and more speedily process the whole procedure.
A probate case where the parties cannot agree
Of the two remaining situations that you would boil likely encounter in an initial hearing for a probate case in Texas, both involve circumstances where folks involved in the case do not get along with one another and may even dispute the will. The best way to avoid this type of situation would be to have your loved one name an independent executor in the will itself. If your loved one has done this and no one can test this portion of the will then you still may be able to have a fairly straightforward administration process. The administrator or executor would be able to follow through with the wishes of your loved one and it does not matter what the other folks involved have to say.
If you are named as the executor of your loved one’s estate then you have quite a task in front of you if there is the potential for disagreement. Imagine dividing not only significant property but also small personal pieces of property. The decision on how to divide up property like this must be arrived at after careful deliberation. You also have to be able to balance the needs and wants of each family member before making these types of decisions. Needless to say, this can be a rather thankless position we put in.
This is really where having an experienced probate attorney can help. You would be able to lean on that person’s guidance on how to best divide property and will be able to do so with the understanding that you are following typical precedent in a case like this. You would not have to make these decisions independent of any authority they would instead be able to lean on an attorney for their perspective and guides not only do so in a manner that allows your case to be attended to efficiently but also treats heirs fairly.
The last situation that you may encounter in your initial hearing is 1 where none of the parties get along and that the family and potential heirs or beneficiaries require a great deal of involvement from the probate court judge. When you ask the executor or administrator need to run past decisions with the judge at all points in your case then you are involved in what is called a dependent administration. This is one with the court looks over your shoulder constantly.
A dependent administration costs more money, takes more time it is a lot more complicated than an independent administration. A more detailed accounting as far as the inventory list of properties concerned must be undertaken. You may even have to hire experts to be able to come in and appraise and value the property depending on what types are involved. He would then have to ask the court for permission to sell the property or distribute assets or even pay creditors.
As you can see, there are a fairly wide range of possible outcomes and a probate case. With so many circumstances at play in your case, likely, you would never be able to anticipate all of them with any degree of certainty. As a result, hiring an experienced probate attorney to walk you through these steps can be incredibly important. Bear in mind that it is not only the responsible ability of yours to ensure that the case is taken care of quickly but that the terms of the will are followed exactly.
Speaking with an experienced probate attorney can make a significant difference in the outcome of the case. That process begins with interviewing experienced attorneys who can best assist you and your family during a difficult transitionary period in your lives. It is up to you which course to take regarding the case but you need to be able to make decisions that are known only based on the wishes of every loved one but are prudent regarding the law and the circumstances of your case.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed probate law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of probate law as well as to learn how your family circumstances may be impacted by the estate or probate processes.