Of all the subjects to discuss the law in Texas, probate is probably among the least desirable. No matter how well prepared or conscientious you are being regarding your estate planning, the reality of the situation is that nobody likes to stop and think about how their life may come to an end or how they have work to do about their estate planning needs. Certainly, no matter where you fall in that spectrum it is important for you to be able to consider what your plans are for your money after you pass away. This is not a question for money-hungry or greedy people to ask. Rather, it is a question for conscientious and forward-thinking people to ask themselves.
The simple reality is that you work too hard and have planned too well to risk losing even a portion of your money in a state to the government or to persons whom you do not desire. Having a will is the most straightforward and efficient method of ensuring that your property ends up in the hands of those whom you desire. Not having a will or having a will that is poorly drafted is taking a big wrist not only in the sense of failing to protect your assets but also and preparing your family for your death. There is no way to sugarcoat this or to think about it in other terms. The faster you can become more comfortable with this subject the better off you and your family will be.
At a certain level, it becomes a discussion about the level of care you are willing to put into your life and the property that you have accumulated over time. That does not mean you can’t still be largely uncomfortable with thinking about your death. I think there are very few people who are completely at ease with their mortality and planning around these types of events. However, you must be able to plan for your children’s future, your extended family’s future in your spouse’s future. As the old saying goes the only sure things in life are death and taxes. With that said, let’s discuss what it means to care for your estate on your behalf and behalf of your family.
What is the process of going through probate like?
At its core, the purpose of going through probate is to ensure that the will you have created is valid. As with any legal document, there can be defects in your will that render it invalid and unenforceable. This is oftentimes a shock to persons in your family who have either no idea that you had a will in the first place or believe they will you have drafted was perfectly valid. As such, it is beneficial both to have an experienced family law attorney to help you draft the document and to be able to sit down with your family members before your passing to discuss the terms of the will. This will avoid misconceptions and misunderstandings once you do pass away.
Additionally, the probate court will formally appoint a person to represent your estate in the probate proceedings. Normally, this person is the executor under your will. You will likely name an executor and a replacement executor in case the original party is unable to fulfill their duties in representing your estate before the probate court. Additionally, you will be tasked by the court with collecting any assets of your state and preparing an inventory to allow the court to understand exactly what property is a part of your estate.
Next, one of the subjects that we have not discussed yet and this blog post is the reality that many people pass away with debts to their name. These debts will have to be paid out of the body of the estate most oftentimes by selling property contained in that estate. Once any creditors are paid why did the estate then the remaining money can be distributed to beneficiaries. However, you must first consider anyone that you owe money to as far as creditors are concerned.
The court will be tasked with determining who is to receive assets of your estate as contained in your will. Once the executor of your estate divides up the property the estate will be closed. This is a very brief rundown of what you can expect regarding hey probate case involving you and your family when you pass away. This is a very detailed event in requires he will that is well constructed and drafted. If you are considering going online to have your will drafted then I would ask you to reconsider and instead focus on hiring an experienced estate planning attorney to help you in this endeavor.
What is separate property and Community property about a Texas probate case?
Separate property, as classified under the Texas family code, is any property that is owned before your marriage or received during your marriage by gift or inheritance. Additionally, if you and your spouse created a premarital or marital property agreement then these pieces of the property contained in the premarital or marital property agreements can also be counted among separate property assets that you own.
On the other hand, Community property would be any other property that is acquired during your marriage that we do not count as separate property. The presumption in Texas is that at the time of death or divorce all property that you own is considered to be Community property. To rebut this presumption you must have evidence showing the separate property nature of the property you are discussing.
How is Community property divided in a Texas probate court?
Distributing property from a will in a Texas probate proceeding is usually not all that complex. First of all, the bill on Texas does not distinguish between real property in the personal property when it comes to I will. Rather, both kinds of property would generally fall under the category of Community property. You would be treating both the same in his situation where your will is going through a probate scenario.
The other part of the situation that makes this process much simpler is that only your surviving spouse, as well as your surviving children or their descendants, can inherit Community property from you. If you have no children who survive you then there will always be a spouse that does. We know this because if you do not have a spouse then there is no Community property either regarding a family law case or a probate case. Common types of Community property that are divided in a probate case would include a vehicle and your family home.
Your spouse would inherit all of your Community property from you if you die without they will and without children. Again, it doesn’t matter if the property that is being divided is real property or personal property. When your spouse inherits property from you in this scenario that property would become their separate property and there and your community estate would cease to be. Your spouse could have a new community estate established when and if he or she re-marries that but that community estate would be with their new spouse.
Keep in mind, however, that if you pass away and are married with children who survive you then the discussion becomes more detailed. The first thing we must look to is whether or not all of your surviving children or their descendants are from this current marriage of yours. If you have children from another marriage or prior nonmarriage relationships, your current spouse would still stand to inherit half of your Community property. The nuances to this discussion are that if any of your surviving children part of their descendants are from another marriage or other nonmarriage relationship with a person other than your surviving spouse then all of your children receive your half of the community estate.
Is it possible to avoid having to go through probate?
This is the, sometimes literally, $1,000,000 question that families ask with some frequency. Many attorneys that you speak to will work amend that you plan your estate planning around not having to go through probate at all. For some people in sub circumstances, it may be for the best to go through probate 2 have a court oversee the process of distributing assets either under a will or outside of the wheel. In reality, you would have to talk with an experienced probate attorney about your particular circumstances before knowing exactly which way you should go despite the challenges of probate cases and administering a will.
one way that it is possible to avoid going through probate is to create a spousal right of survivorship in various forms of real property that you or your spouse owned. This is a relatively new addition to Texas law as it was created approximately 35 years ago by the state legislature. In an amendment to the Texas constitution, you and your spouse would agree that all or part of your Community property would belong to whichever spouse survives the other. At that point, the property would pass to the surviving spouse automatically without having to go through probate.
Keep in mind there are some limitations to this spousal right of survivorship arrangement. The first issue that I can conceive of is that only Community property can be utilized in this regard. There will also be issues with this sort of arrangement regarding taxes. Unless your spouse can reduce the value of your estates combined to less than $1,000,000 at their death then there can be significant estate tax issues period, of course, if you all are not at this level then that is probably a moot point.
The creation of a life estate is another method of avoiding probate that you and your family may choose to take advantage of in your estate planning. A life estate, is created when one person maintains exclusive possession and use of a certain piece of property for life. For example, you could fulfill the role of a life tenant who would be able to have possession and use of the property for your life. Then, your spouse can fulfill the role of the remainderman who would receive ownership of the property immediately upon your passing.
No probate will be needed for this type of transfer. Met considers this situation where you pass away then your wife has 100 acres that she wants your daughter to have when your wife passes away. In that case, she would then be able to deed the property to your daughter where she retains a life estate in the property for as long as she lives. When your wife ultimately passes away then your daughter would automatically get title to the property without having to go through probate.
A living trust is another method of avoiding the probate process, however, it is much more complex than even the first two arrangements that we have discussed in today’s blog post. A living trust involves creating a trust while you are alive as opposed to one that is created at your death. Essentially, you could convey all the property your own to the trust. The trust would have a trustee who holds title to the property and manages it for the benefit of you or a beneficiary. Whenever you die, the trust could or could not terminate depending on the terms contained in the document.
Whether or not the trust terminates at the time of her death does not matter. In either case, no probate will be required because no property is owned by you at the time of your death. Since the property belongs to the trust you could avoid any issues with having to pay taxes through the probate court. Bear in mind that you must transfer all property to trust before you pass away. If you fail to do so then you cannot avoid the probate process.
Finally, consider the use of a durable power of attorney is working to avoid the probate process. A durable power of attorney exists when each spouse grants to one another the power to manage the affairs of the other person if you or she become incompetent or unable to do so on your own. The court would need to appoint a guardian at this time. However, your spouse who has durable power of attorney will be able to remove all property from your estate before you pass away. Again, since you die without property no probate would be needed.
How soon after passing away must your spouse submit your will to probate? This is a very practical question that I don’t believe has been asked or answered in any of our previous blog posts. From the date on which you pass away, your spouse or other person has up to four years to submit your will to the court and to have it admitted to probate. This means that while you have time to do so if you were to be in this position with your spouse passing away it is wise to do so as quickly as you possibly can.
The reason being is that you do not want to put yourself in a position where a great deal of property is up in the air and not taken care of as far as determining who owns what and in what shares. Additionally, creditors during this time may be assessed late fees and other penalties to accounts owned by your spouse. It is much better to deal with these accounts sooner rather than later.
Having a plan is the most important part of this process. You will be much better off if you have thought out the issues involved in your case before a point in time where you may be unable to do so because of poor health or some other impairment. Rather, you should plan which involves creating a will that can be upheld in court and clearly states how property is to be distributed. Otherwise, you risk putting yourself in a position where you put your family at risk you have a great deal of uneasiness and stress during a time that they should be able to devote to mourning your passing and remembering the good times that they shared with you.
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 Texas probate law as well as about how your family circumstances may be impacted by the filing of a probate or estate planning case.