Regardless
of what you may have been told, most probates are not the nightmares that
they have been made out to be. Most states, including Texas,
have been simplifying the probate process for years. In fact, it was Texas
which took the lead in this. Most probates are
governed by a process called "Independent Administration." A
process which requires virtually no Court supervision other than a
"prove-up"
Independent
Administration means that the Executor of the estate will supervise,
administer, and distribute the assets of the estate without court
supervision. How does this work?
First,
the deceased must have an executed and valid Will calling for independent
administration. This Will is then filed with the Court through a document
entitled Application for Probate of Will. After a period of 60 days, you and
your lawyer will appear before the Court to prove-up the Will.
A
"prove-up" is nothing more than a 10 minute hearing before the
Court, or the Court's administrator, where your lawyer asks you several
questions which "proves-up" the Will. The Court will then sign an
"Order Admitting Will to Probate." The Clerk of the
Court then issues "Letters Testamentary" which allows the
Executor to distribute and retitle the assets of the estate in accordance
with the Will.
Following
issuance of letters testamentary, the Executor will complete a document
entitled "Inventory and Appraisement" of the estate (your lawyer
will provide a blank form for this). Once completed, the document is filed
with the Court.
Though
it is not required, you may also file with the Court a document entitled
"Closure of Estate." This is a summary document which spells out
who got what. It is done to "tidy up" the probate.
The
probate process is now complete.
Now
for the disclaimers. If the deceased "left a mess," or has an
extensive list of assets invested in every conceivable form, then you could
be looking at some some real lawyer time to get it straightened out -
depending, of course, on the nature of the case. Further, the foregoing has
not discussed litigated probate where an heir disputes the validity of the
Will or testamentary capacity of the deceased (hopefully, the deceased
had a no contest clause). This type of problem is an entirely different
matter.
Frequently
Asked Questions
What
property goes through the probate process?" All
of your property is subject to probate unless it is governed by some
other instrument which is "outside" of probate.
For example, property governed by Living Trust, Irrevocable Trust,
joint tenancies in common with right of survivorship, and properties
governed by contract such as Life Insurance and or trusts are outside of
probate.
How
much does probate cost? Unfortunately, there are lawyers out there who
would charge an exorbitant price for handling a
probate – some as high as 10% of the estate’s value.
It should not be that way. If you have a properly drawn Will calling for independent
administration without bond, the probate process should not be time
consuming or expensive. This, of course, is directly dependent upon the
organization of the estate and its size. Recognize, if your spouse or
relative “left a mess” then probate costs may be greater.
This can be avoided, however, by organization and implementation of an
estate plan.
