WHAT IS PROBATE?
Probate is proving what you own, what you are owed and who should get the remaining property after the bills are paid. If you leave no debts not secured by real estate, no more than $60,000 in personal property and no more than $75,000 in other assets (such as a bank account), probate can be as simple as filing an Affidavit of Small Estate.
What about taxes?
Many people confuse probate with estate taxes. While the federal estate tax exemption was once as low as $600,000, in 2018 it is $5.59 million, $11.18 million for a married couple. That federal exemption will rise with inflation. Texas has no estate or inheritance tax.
Does someone have to go to court to settle my affairs?
If you have a valid and properly signed, witnessed and notarized Will providing for an independent administration without bond which says that the only court involvement will be to probate and record your will and to receive any required Inventory, Appraisement and List of Claims, that is what will happen.
The person settling your affairs will only need to go to court once. He will spend less time in court than it takes to drink a cup of coffee. His only other contact with the court can be signing affidavits and the Inventory, Appraisement and List of Claims. These are electronically filed by the probate lawyer.
Is probate expensive?
A valid Will with the right language and a properly signed, witnessed and notarized affidavit combined with a transfer on death or “Lady Bird” deed and correctly named beneficiaries on your bank, brokerage and retirement accounts will make probate faster, cheaper and easier. Your family can be provided for. Your property can pass the way you want.
Is it hard?
Texas probate can be easy. The person you name to settle your affairs, your executor, will receive court papers (Letters Testamentary) allowing him to deal with your property. He may ask an attorney to e-file affidavits and requests and present your Will in court. He must file your final tax return. As Benjamin Franklin said, it’s inevitable.
Your probate attorney can ask the court to set aside an allowance to support your family for a year. She can ask the court to exempt your homestead and other items altogether. She can place the required newspaper notice to unsecured creditors and negotiate with them. She can notify the beneficiaries and make sure that things run smoothly, letting your family focus on memories.
What if I don’t have a will?
If you do not leave a valid Will – or if no one can find the original — probate takes a little longer and can cost a good deal more. Real property might not pass to your heirs by an Affidavit of Heirship. Circumstances may rule out an Affidavit of Small Estate. If so, your heirs must file an Application for Determination of Heirship and Issuance of Letters of Administration. The court must appoint an attorney to help find possible missing heirs or people who are unable to speak for themselves. The search must be announced in the newspaper. Perhaps most important, your property may be divided very differently than you imagine or intend. The Texas Law of Descent and Distribution derives from the law of the Visigoths, who conquered much of Spain over 1,000 years ago.
It’s never too early to plan for your future.
Planning can give you a sense of control and make life easier for those you leave behind.