Wills, Estates and Probate
At Carabin Shaw our goal is to help you prepare for life’s twists and turns, our attorney’s know that the ability to control what happens to you is important, be it the management of uncertainty and risk that may affect you, your loved ones, your family or your friends; the understanding of and preparing for health issues and incapacity ahead of time; and the capability to direct where your assets go so you can take care of the individuals that are important to you now and in the future, these things matter. To achieve that kind of certainty and peace of mind, the attorney’s at Carabin Shaw can help. There are many different services available, here are just a few.
Probate Will - Independent Administration allows for you to direct where your Estate assets go at the time of your death as indicated in your Will. This procedure is the one that has the most latitude and least Court direction relative to payment of debts, and allocation of Estate assets. That is so long as the appropriate probate code provisions are followed, the procedure is explained in more detail below.
Administration of Estate – Independent / Dependent is a procedure to divide the Estate when there is no Will, the Will is found to be invalid, or the beneficiaries/heirs cannot agree on who is to be named as the Estate Representative. In addition this type of administration will require that heirs be established by affidavits filed with the Court, and that an Attorney Ad Litem be appointed to represent unknown/incompetent heirs.
Probate of Will - Muniment of Title gives you the ability to transfer title to real property when there are no debts and the house is the main asset of the Estate. This method is less complicated and therefore not as costly as a full Probate or Estate administration.
Small Estate Affidavits are best when there is no will (and even in some cases where a Will does exist), and the Decedent left an Estate whose value is $50,000 or less, not including the homestead and/or exempt property.
Affidavits of Heirship can be used in conjunction with an Estate Administration when there is no Will or the Affidavits of Heirship can also be used on their own to memorialize who the heirs of an Estate are and to allow for the transfer of title to real property.
Will(s) to name your beneficiaries and transfer Estate assets.
Durable Powers of Attorney to allow for an agent of your choice to handle financial matters when you cannot direct those matters yourself.
Medical Powers of Attorney to give authority to the agent you choose in the event you need medical care are suddenly injured or become disabled.
Directive to Physician, Family or Surrogates , which is sometimes called a “Living Will,” is used so that you, the Principal, can give specific directions for your care, most often used to specifically direct that certain types of care or procedures not be done to you.
Texas Law: Probate vs. Non-Probate Transfer of Assets
Let’s start with the more formal probate process and follow up with some of the simpler ways you can transfer assets, too.
Probate Estate: Independent Administration
Many Texas wills can be dealt with by filing an Application to Probate Will and for Issuance of Letters Testamentary. This route assumes you have a valid Will, which is explained in detail further down in this page. Filing the Probate of a Will as an Independent Administration means several things to the Court, for example:
- There is a valid Will being submitted with specific named beneficiaries or classes of beneficiaries, for example children or grandchildren.
- The Will being submitted for Probate names an Independent Executor, the Will likely states that the Executor does not have to post a bond and will file an Inventory.
- In this type of Estate normally an Application and Order with supporting documents is filed with the Court, a hearing is held where the Executor named in the Will is formally appointed and Letters Testamentary are issued
- The Probate of a Will as an Independent Administration means the named Executor is required to send Notices to Beneficiaries but does not have to ask the court for permission to settle the Estate, for example the paying of secured/unsecured debts from Estate funds (as appropriate), the selling of estate property (if needed), and the distribution of assets to the people named as beneficiaries in the Will.
Once the Will is accepted by the Court the independent executor is responsible for posting or publishing a notice to unknown creditors, sending notice to secured creditors (this is an option) and filing an Inventory, Appraisement, and List of Claims. Assuming the named Executor followed the appropriate creditor notice procedures and complied with the Will provisions, when all claims are collected, debts are paid, and estate assets are delivered or divided a closing of the Estate can be filed. Note: the assets in question must be collected, safeguarded, and if necessary, insured by the Executor prior to distribution to the named beneficiaries. Any fees, costs, and expenditures are paid from Estate monies and NOT out of the Executor’s own funds.
Probate Estate: Dependent Administration
This manner of dealing with the Estate shares many of the same characteristics as an Independent Administration, however, the key features of a Dependent Administration revolve around the fact that either no Will was found, no Will was left by the Decedent, or the Heirs of the Estate do not agree as to who is named as the Administrator/Executor, which means that there is more court supervision of the process.
Probate of Will as Muniment of Title
Filing a Will as a “Muniment of Title” under § 89C of the Texas Probate Code is best when the following apply:
- The Decedent left a valid will.
- Decedent has no unpaid debts, not counting debts secured by real property.
- The Estate does not have a Medicaid claim for recovery of benefits received by the Decedent.
The Will transfers assets to the persons or entities named as beneficiaries. Note that because the transfer of assets is normally straight-forward, the Court in a Muniment of Title will not formally appoint an Executor or Administrator, Letters Testamentary are not issued, and an Inventory, Appraisement, and List of Claims is not filed. In addition, the Court will require that heirs be established by affidavits filed with the Court, and that an Attorney Ad Litem be appointed to represent unknown/incompetent heirs.
To make sure there is follow through regarding the Estate of the Decedent, the Applicant who submitted the Will to Probate as Muniment of Title is required to file an affidavit within six months of the Order being signed what actions were completed or not completed relative to the terms contained in the will.