Probate

Estate Planning & Probate

There is more than one way to probate an estate, and they are not equally expensive.

Families arrive expecting a single grinding process. In reality the first question is which procedure fits: whether there is a will, whether there are debts, what the estate consists of, and whether anyone is likely to fight. Choosing well is the difference between a couple of hearings and two years of court supervision.

Muniment of title: the Texas shortcut

Where there is a valid will and no unpaid debts other than those secured by real property, a Texas court can admit the will as a muniment of title — no executor is appointed and no administration follows. The order itself transfers title. For a family whose main asset is the house, this can finish in a single hearing.

The deadline nobody mentions

A will generally must be offered for probate within four years of death. Miss it and the estate is usually treated as though there were no will, with intestacy rules deciding who inherits — frequently not what the deceased wanted, particularly in blended families. If a will has been sitting in a drawer for years, it is worth asking about now.

What has to be gathered and valued

Real property and bank accounts, certainly — and also vehicles, investments, business interests, personal valuables and collections, and the contents of the house. The inventory is where families discover what they did not know about, which is a reason to secure and insure everything before it is distributed. The executor also has to file the deceased's final tax returns, and a return for the estate if one is required.

What makes a probate difficult

• A will that is missing, unclear, or contradicted by a later document.
• A high level of debt, or an estate that cannot pay what it owes.
• Beneficiaries who disagree, or an heir who cannot be located.
• Property in another state or another country.
• A business that has to keep running while the estate is administered.

Keeping assets out of probate in the first place

A living trust, joint ownership with rights of survivorship, payable on death accounts, beneficiary designations and a Lady Bird deed all pass property outside probate. Used deliberately they can reduce an estate to almost nothing that needs administering; used piecemeal they unbalance a plan, because the will then governs only what is left. It is worth looking at the whole picture rather than one asset at a time.

What an executor is actually taking on

Notifying beneficiaries and publishing notice to creditors, inventorying and valuing assets, securing property and insurance, dealing with the deceased's debts and final tax returns, and distributing what remains. An independent executor does most of this without court permission — but they are a fiduciary throughout, personally accountable to the beneficiaries, and that is where problems arise when the role is treated casually.

Common questions