San Antonio Probate Lawyer
When a person passes away, probate court might be where the affairs of the deceased are sorted out. When that happens, a probate attorney is required under Texas law to adjudicate the estate.
Many people believe that having a will eliminates the need for probate. It’s true that having a will can make the probate process go a lot smoother, but the only way to avoid probate altogether is to have a living trust set up. Otherwise, probate court is necessary.
A San Antonio probate attorney can draft your will and provide advice that may help the final probate process go smoother. Call the Law Office of Paul D. Hardy at (210) 405-1985 or contact us online today.
Probate When You Have a Will
After your lawyer has drafted your will, that document will be filed with the probate court in the county where you reside. A notice is posted for a period of ten days. Even though you are still very much alive, the purpose for this is to allow anyone who might wish to contest the will to come forward now. This 10-day waiting period is not the only time a will might be contested, but presuming it passes without incident, your will is assumed valid.
When you pass on, there will be a hearing in probate court. A judge will rule on the competence of the person designated to administrator (executor) of the will. If your will does not clearly state who the executor is to be, a person may apply for the role.
Once an executor has been approved the court will send written notices to interested third parties of that fact. Interested third parties might include family members and others who may be beneficiaries of the will.
The executor now has a 90-day window to conduct an inventory of the deceased’s estates. This includes paying off any outstanding debts and closing out tax filings. The inventory process also includes appraising the estate. Property must be valued, as should any important heirlooms, like artwork.
We’re now at a point when a will might again be contested. The valuation of an asset might be the subject of a dispute. Let’s say a will identifies four people as beneficiaries, with all four to get an equal share. One person will get the valuable painting that hangs over the mantle. The precise value of that painting will impact how the rest of the estate gets divided.
Other disputes might be over whether creditors truly had a legitimate claim. It’s also possible the performance of the executor might be subject to dispute. Executors take on a fiduciary duty to act in the best interests of the estate. If a beneficiary or other interested party does not believe that is happening, that can be brought before a probate judge.
It is only after all disputes are settled that assets can be distributed according to the terms of the will. The longer disputes drag on, the more the costs of the probate process will increase. Those costs come out of the inheritance money left behind and therefore decrease that ultimate value of everyone’s inheritance.
For that reason, the best wills are written clearly with as little ambiguity as possible. Although even a poorly structured will is better than none at all. The potential for a real probate mess exists when the deceased never put their last will and testament into a legal document.
Not having a will can result in your wishes being either unknown or lacking legal authority. Call a San Antonio probate lawyer from the Law Office of Paul D. Hardy to get a last will and testament in place and filed with the courts. We’re available either online or at (210) 405-1985.
What Happens in Probate When There Is No Will?
The state of Texas will still attempt to get your assets to those closest to you. There is a clear line of succession established in Texas law. The state does everything possible to get your assets to a family member, be it a spouse, children, siblings, parents or cousins. But given how different the life dynamic is of every person, there’s a good chance that this will not be how you would have preferred it.
If you are married and your spouse is still alive, the state must first ascertain what property is yours and what belongs to the marriage. This is similar to what happens in family law courts during a divorce.
The assets you and your spouse acquired during the marriage are considered community property. That is, they belong to both you and your spouse jointly.
It’s also possible that you may have separate property. This can be an inheritance you might have received, or it could be property that you brought into the marriage.
Your wishes might be for your spouse to simply inherit everything. But depending on the circumstances, Texas law might require something quite different.
Let’s say you have children. If they are children you had with your spouse, then the spouse will get all the community property, but only one-third of your separate property. The remaining two-thirds of separate property goes to your children, presuming they are adults.
Or perhaps your kids are not those you and your current spouse had together. Now, the spouse will only get one-half of the community property, along with one-third of the separate property. The adult children get the rest.
There’s a good chance these arrangements are not what you would have wanted. Even if they are what you wanted, the lack of a will makes a contested probate process more likely. Contested probate processes will result in more fees coming out of your estate and decreasing the value of the inheritance. They can also result in relationship-damaging disputes between people you love.
That depends. Texas law stipulates that only a lawyer can represent a third party in a probate proceeding. The estate of the deceased would be a third party, so an attorney is necessary to assist in the execution of the will or distribution of assets.
If you wish to contest something in a probate hearing, you are welcome to do it on your own. We naturally believe your case will be strengthened by having someone intimately familiar with Texas inheritance law on hand to make it for you.
The Law Office of Paul D. Hardy has that deep and intimate knowledge of Texas inheritance laws and estate planning. Whatever your needs are, be it the drafting of a will, the execution of an estate or contesting what you believe to be an injustice, we can help.
Isn’t Estate Planning for People Who Are Rich?
No! The word “estate” can conjure up images of a sprawling yard and luxurious mansion, as though we’re on the set of Downton Abbey. Reality is different. Your estate is simply the money and property you own at the time of your death. Estate planning consists of the various legal mechanisms that are used to ensure your wishes are known and respected, that you get the best possible tax treatment based on your goals and that prudent steps are taken to protect your assets as much as possible in your final years of life.
Can You Avoid Probate With a Will?
A will alone will not be enough for your heirs to avoid going through probate court, with its attendant fees. The way to keep your assets out of probate court is through the establishment of a living trust.
What Happens Without a Will?
When you die without a will, your estate becomes subject to the intestacy laws in the state of Texas. The state seeks to place your assets in the hands of living spouses, children, siblings and parents and has clear guidelines for different family scenarios. The problem is that the law for an entire state is simply not able to anticipate the particular wishes of a deceased person. That’s why it’s strongly advised to put your last will and testament into writing. That way, everyone knows what your wishes are, and courts will be able to enforce it.
What Are the Benefits of a Trust?
Staying out of probate court is just one of the advantages that a living trust can offer. A trust can be structured so as to minimize your tax exposure ,while still allowing you to gift money into it while you’re alive. If you believe the benefits to your beneficiaries are best deferred to a later date or spread out over time, you can appoint a trustee who can administer that after your passing. A trust offers you flexibility and allows your beneficiaries to avoid dealing with probate court .