18 S. Main, #601, Temple, TX and 1104 S. Rock Street, Georgetown, TX

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Probate & Alternatives

We provide compassionate counsel to individuals regarding the necessity of probate or the availability of a probate alternative, guide fiduciaries through estate administrations, and advise beneficiaries and heirs regarding their rights to an estate.

What is probate anyway?

It helps to to have the vocabulary straight.  In general, “probate” is the legal process of winding up the affairs of someone who has passed away.  The bundle of assets and liabilities a person leaves behind is often referred to as an “estate”.  The person who passed away is often referred to as the “decedent”.

An estate is generally composed of:

  • Liabilities-debts owing by the decedent
  • Non probate assets-assets that have a valid beneficiary designation, such as real property/accounts held with the following designations: JTWROS (joint tenants with rights of survivorship), TOD (transfer on death), or POD (payable on death), and such as retirement accounts and life insurance with named beneficiaries
  • Probate assets-assets that do not pass by beneficiary designation, or which do not have valid beneficiary designations

Probate generally consists of determining the assets and liabilities of a decedent and the value of those assets and liabilities, determining who is the appropriate recipient of the assets (creditors, or will beneficiaries, or intestate heirs), delivering and perfecting title of the assets to the beneficiaries (via probate of a will if necessary, or possibly via an intestate administration if there is no will, or possibly via a probate alternative if no probate is necessary, irrespective of whether there is a will).

Is probate necessary for every individual who passes away?  

No!  Even if there is a will, there may not be a need to probate it.  There are several instances where probate may not be necessary:

  • If the decedent’s estate is entirely composed of non probate assets.
  • If a viable probate alternative exists.

Note that “I/Mom/Dad/Sister is not having trouble accessing accounts or having any other trouble” is not a reliable method of determining probate is unnecessary.  It is better to get professional advice about the necessity of probate before a decision is made to do nothing…especially if the decedent had a blended family.

Is probate necessary even if there is no will?  

Sometimes.  Unless the decedent’s estate is entirely composed of non probate assets or unless a viable probate alternative exists, a probate may be necessary.

Are there different types of probate?  

Yes.  There are generally two overarching types of probate:

  • Probate of a will as a muniment of title-a shorter form of probate available only if there are no debts of the decedent.  Debts secured by real property are allowed.  Note that even though permissible, this type of probate might not be preferable in certain circumstances.  A thoughtful discussion with an attorney is essential.
  • Probate and estate administration-There are many variations of this type of probate.  The defining questions are generally:  1)  Is there a will?  2)  Will the administration be under the supervision of the court (called a dependent administration) or not (an independent administration)?  The terms of the will (whether an independent executor is appointed under it), in some cases the agreement of the beneficiaries or heirs (if there is no will or no appointment of an independent executor under the will), and in some cases the preference of the individual in charge of the estate (called a personal representative or executor) informs the type of administration selected.

How much does probate cost?

Though the answer is not popular…it depends.

  • Probate of a will as a muniment of title generally consists of an Application to Probate being filed with the appropriate court, attendance at a hearing where certain facts are proved to the court, usually via sworn Affidavit, and an Order from the court determining the validity of the will, which can be relied on by those holding property in the decedent’s name to effect a transfer to the will’s beneficiaries.  Occasionally there are circumstances that require additional consideration and must be addressed specifically, for example, if the will is handwritten, if the will is not self-proved as per the Texas Estates Code, if the will is in a foreign language, etc.  Additionally, there is sometimes need for assistance in ensuring that assets are transferred to the appropriate beneficiaries correctly and expeditiously.  A quote can be provided based on your specific circumstances.
  • The probate of a will (or determination of heirship if there is no will), appointment of personal representative or executor (as applicable) and type of administration (dependent or independent) vary in the documents required for each.  As such, the costs are variable for each.  A quote can be provided based on your specific circumstances.

How do I figure out what (if anything) is required or necessary and how much it will cost?

Please call or email to set up a time when we can have a no obligation, 15 minute discussion about your specific circumstances in order to determine whether a probate is necessary, what type is necessary, or what type of probate alternative might be available to most effectively and efficiently wind up the affairs of the decedent.  Based on that determination, a quote will be provided.

Probate Alternatives

While a probate may be necessary to wind up the affairs of a decedent, sometimes a more efficient method is available.  Enter…probate alternatives.  Pricing varies by probate alternative, as the requirements of each differ widely.  Please call or email to schedule a no obligation, 15 minute conversation to determine which method is appropriate for your circumstances and receive a quote.

Some probate alternatives available include:

Affidavit of Heirship

  • What is it?  A sworn statement of facts, corroborated by 2 people via additional sworn statements, concerning the decedent’s family history and the identity of his or her heirs filed in the deed records if real property is involved.
  • When is it typically used?  When there is no will, or there is a will whose distributees are the same as the intestate heirs (called an Affidavit of Heirship with Will Attached).
  • This is one of the simplest methods, but is often met with resistance so you must be certain it will be accepted by the holder of property.  If real property is involved, title companies often will not rely on an Affidavit of Heirship unless it has been of record for 5 years.

Small Estate Affidavit

  • What is it?  An affidavit sworn to by 2 witnesses and the distributees listing the assets and liabilities of the estate, the names and addressees of the distributees, and family history filed with the court and Order by the court.
  • When is it typically used?  When there is no will and the entire estate, not including the homestead and exempt personal property (which is listed in the Texas Estates Code) does not exceed $50,000.

Proceedings to Declare Heirship

  • What is it?  A judicial determination of the heirs of a decedent.  An application, notice, attorney ad litem, and hearing are required.
  • When is it typically used?  When…1) there is no will and no other probate alternative is available 2) there is a will, but the will does not entirely dispose of decedent’s assets; or 3) there is a will, but it was not probated within 4 years due to the fault of an applicant.

Other probate alternatives include Informal Family Agreements, Orders of No Administration, and Community Administrations.