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.
You do need a lawyer for probate. An experienced probate attorney, Terry Garrett can help.
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 will rise with inflation. Texas has no estate or inheritance tax. Unless you have a beneficiary in a country or one of the four states which has an inheritance tax, neither your estate nor its beneficiaries will pay tax.
Does someone have to go to court to settle my affairs?
Yes, Once. If you have a valid and properly signed, witnessed and notarized Will providing for an independent administration without bond, court involvement will be minimal.
The person settling your affairs, your executor, 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 will be electronically filed by the probate lawyer.
Is probate expensive?
Not in Texas. Because Texas allows independent administration, the cost of probating an estate in Texas is about one-quarter the average cost of probate in the U.S.
Independent administration 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 present your Will in court and help administer your estate. He must file your final tax return.
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.
The situation is more complicated if only a copy of your Will can be found. The copy can be probated but only if the subscribing witnesses or people familiar with your handwriting can testify in court.
There are also situations in which an independent administration is not allowed. If you leave minor children, the court can require a dependent administration to protect their interests. This means that your executor must seek court approval before acting.
What if I don’t have a will?
If you do not leave a valid Will, probate can take longer and can cost a good deal more — depending on what you leave. More important, your property may be divided differently from what you expected, regardless of what you told people you wanted.
If all you leave is your home, two people who know your family but are not your heirs can sign an Affidavit of Heirship. It must be filed in the county deed records for five years before a court will enforce it. This allows anyone who was forgotten to come forward.
If all you leave is your home and up to $60,000 in personal possessions and $75,000 in other property (such as a bank account), all the heirs and two people who know your family but will not inherit can sign an Affidavit of Small Estate. All must sign before a notary and promise to pay your debts. While in many counties over 90% of Affidavits of Small Estate are rejected, in counties where the Affidavit of Small Estate is reviewed by an attorney, the rejection rate drops by half.
If you leave more or if the required people will not all sign, an heir 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. Some heirships are straightforward. Some require hiring a private attorney to find heirs. This increases the cost and lengthens the time needed to settle your affairs.
Two-thirds of Texas rob themselves and their families of peace of mind. They die without a Will. You don’t need to.
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.