Houston Probate Attorney

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Probate trials are the court-supervised process of administering an estate after the owner of the estate dies. Probate can be lengthy and complicated, depending on the circumstances, such as if the deceased did not have a will or if the existing will is improperly drafted. However, thanks to the state’s “independent administration” allowance, probate in Texas can, in some circumstances, be simpler than in many other places, allowing executors to settle uncomplicated and uncontested estates with minimal court supervision.

If you are facing a complex probate process, it is very important to hire an experienced Houston probate attorney. At Stepp Law Firm PLLC, we assist clients with all aspects of probate. Our team can help you complete the required steps. If you are the executor of an estate, we will ensure your rights are protected. If you are an heir or beneficiary, we will represent you in any dispute regarding a will or estate. Schedule your initial appointment with our Houston probate attorney team today or call now at 713-336-7200.

About Probate in Texas

Probate is the legal process used to validate and administer the assets of the decedent’s estate. This includes validating the decedent’s will. An attorney is required to probate an estate as it is a legal process. The length of time and cost to finalize probate depend on the size and complexity of the estate and whether anyone files a contest. Larger counties in Texas have specialized courts that handle probate matters, but most have knowledgeable judges who handle probate cases specifically.

If a valid will is not submitted to probate within four years of the decedent’s death, then the estate is administered as if no will existed. If a valid will exists and names an independent executor, the court will allow the executor to administer the estate with minimal involvement of the court.

If there is a Valid Will…

Under Texas Law (Texas Est. Code §251.001 – §251.007), a valid will requires:

• Legal capacity: 18 years old or over.
• Testamentary capacity: The person making the will must, at the time the will is executed, have sufficient mental ability to understand the business in which he is engaged, the effect of his acts in making the will, the capacity to know the objects of his bounty and their claims upon him, and the general nature and extent of his property.
• Intent: The person has the formal intent to disperse their property upon their death.
• Holographic will: A will is valid if it is completed in one’s own handwriting and executed by the person. No witnesses required.
• Attested will: It must be in writing, signed by the testator or under his direction, and attested by two or more credible witnesses who are at least 14 years of age and who sign in the presence of the testator.
• Self-proving affidavit: Executed by the testator and two witnesses in the presence of a notary. Allows a will to be self-proved in probate without the witnesses testifying.

If there is no Will…

Dying without a will is called dying “intestate”. The estate planning process can help avoid this situation. Some common examples we see when someone dies intestate include:

Example 1: Survived by spouse and children who are also children of the surviving spouse

Surviving spouse inherits all the community property and one-third of the descendant’s personal property, along with a life estate in one-third of the real property. The children inherit the remainder of the personal property and real property equally.

Example 2: Survived by spouse and children who are not children of the surviving spouse

Surviving spouse inherits one-third of the decedent’s separate personal property and a life estate in the real property. The children inherit two-thirds of the decedent’s separate property and the decedent’s half interest in the community property.

Example 3: Survived by spouse and parents/siblings but no children

Surviving spouse inherits all the community property, all of the decedent’s separate personal property, and a half-interest in the real property.

Probating The Estate

There is a general process for probating an estate. The simplified version includes the following steps. Our Houston probate attorney team can assist with this process from start to finish.

1. Validity of the Will: Determine whether a valid will exists.
2. Application For Probate: File an application in the county probate court where the decedent resided at the time of death. If a valid will exists, include the will with the application. If there is no will, then the heirs need to file an Application to Determine Heirship first.
3. Notice of Probate: The County Clerk will post a notice at the local courthouse alerting the public that a probate application was filed for the estate and serving notice to anyone who would like to contest the probate.
4. Initial Hearing: Approximately two to three months, depending on the circumstances and the court’s caseload, after the application is filed, the Court will hold a hearing to validate a will. In uncontested probate, the court will validate the will and appoint an executor or administrator. If there is no valid will, the Court will seek to determine heirship and appoint a representative to investigate.
5. Inventory of Assets: Executor or administrator must catalog and report all assets held by the estate.
6. Identify Beneficiaries: If a valid will exists, the executor or administrator will contact the beneficiaries named in the will. If there is no valid will, the Court will determine the heirs via the intestate succession statutes.
7. Notify Creditors and Resolve Debts: The executor or administrator notifies creditors (medical bills, mortgages, loans, etc.) so that they may make a claim in the estate. Debts are paid out of the estate.
8. Resolving Will Contest: Resolve any disputes concerning the distribution of remaining assets.
9. Distribute Assets: Remaining assets are distributed to valid heirs or beneficiaries.

Undue Influence

Must Prove:

• Existence and exercise of an influence upon the testator and
• Which operated to subvert or overpower the testator’s mind at the time the will was executed and
• Such that the execution would not have occurred but for the undue influence.

Contestant must prove each of these three elements by a preponderance of the evidence. Generally, undue influence is proved by circumstantial evidence instead of direct evidence. You need to provide enough evidence to be so strong and convincing and of such probative force as to lead a well-guarded mind to a reasonable conclusion not only that undue influence was exercised, but also that it controlled the willpower of the testator at the time the will was executed.

The “Bad Actor”

• Looks at the conduct of the individual who influenced the Testator, their opportunity to mislead, use fraud, and unduly influence the creation of the will, especially if a named beneficiary.
• Influence may be direct or indirect and includes fraud, influence, intimidation, etc. Usually involves an extended course of conduct.

Factors:

• Nature and type of relationship among those involved.
• Opportunity for influence (especially relevant if a beneficiary).
• Circumstances surrounding the drafting and execution of the will.
• Existence of fraudulent motive.
• Habitual subjection of the testator to the control of another.
• State of the testator’s mind at the execution of the will.
• Testator’s mental or physical incapacity to resist or the susceptibility of the testator’s mind.
• Words and acts of the testator.
• Weakness of the mind and body of the testator.
• Whether will is unnatural in terms of the disposition of property.

Due Execution

Contests whether the purported will was created, executed, and witnessed as required under Texas Est. Code §251.001 – §251.007.

Common Issues:

• Failure to include a self-authenticating affidavit.
• Faulty or contradictory testimony of witnesses at the prove-up hearing.
• Failure of a holographic will to be solely in the testator’s handwriting.
• The beneficiary acts as a witness or notary.
• Failure to accurately describe the testator’s property in the will.

Alternatives To Probate

Small Estate Affidavit (Tex. Est. Code §205.001 – §205.009)

• Decedent died without a will.
• The estate is less than $75,000 (excluding exempt property).
  Affidavit executed by all heirs and two disinterested witnesses.

Cons:

• Only used with assets less than $75,000.
• Unique to Texas, banks and financial institutions may not accept or request full probate.
• Cannot be used if the debt exceeds the amount of the estate.

Muniment Of Title (Tex. Est. Code §257.001 – §205.103)

• Decedent left a valid will.
• Decedent has no unpaid debts.
• Best when there are few assets, notably only real property, that needs to have the title changed.

Cons:

• Unique to Texas, out-of-state and private institutions may not recognize it.
• Should not be used if there is a dispute or the heirs do not agree.

Trusts

• Can be used instead of a will to disburse an estate’s assets.
• Can bypass probate by moving assets into a trust and arranging for assets to be distributed as the settlor desires.
• Distribution of assets is not subject to public record, unlike when an estate is probated in court.
• Allows an identified trustee or trust company to manage assets on behalf of beneficiaries.
• Can protect assets from creditors.
• More expensive than a will to create, however, it can save the estate money and time after the grantor passes away.
  Assets must be moved into the Trust.
  Can avoid probate in multiple states as long as the assets in the various states are included in the trust.

Types Of Trusts In Texas

Testamentary Trust

• Created under the terms of the will and does not come into existence until after the settlor’s death.
• Trust terms can be changed during the settlor’s life.
• The trust’s assets are transferred via probate.
• Becomes an irrevocable trust upon the settlor’s death.
• Allows an individual to name a trustee to manage the assets for the beneficiaries (generally used when a minor is a beneficiary).

Bypass Trust

• Initially designed to avoid estate taxes.
• Created by a will at death, a portion of the decedent’s estate up to the estate tax exemption amount, is placed in a trust for the surviving spouse. The remainder of the estate passes via a will or other means.
• Appreciation of assets left in the trust is not included in the surviving spouse’s estate.

Revocable Trust

• Created during the settlor’s life.
• Trust can be changed or revoked by the settlor at any time.
• Upon the death of the settlor, the trust becomes irrevocable.
• During the settlor’s life, assets are owned by the trust but accessible to the settlor.
• Assets are still part of the estate but are administered via terms of the trust and not through probate.
• Can protect an individual if they become mentally incapacitated later in life, as assets are already transferred and controlled by a trustee.

Con:

• As the settlor retains the power to modify the trust, a creditor or claimant may be able to reach assets.

Irrevocable Trust

• Unlike revocable trusts, irrevocable trusts cannot be modified once created; assets are permanently transferred to the trust and management of the trustee.
  Better at protecting assets from creditors or litigation.

What Is An Executor?

An executor is the individual or group designated to manage a deceased person’s estate. Once the person passes away, the executor is the legal representative tasked with carrying out any instructions in the will and other important tasks. Some of these responsibilities include:

• Initiating probate. The executor will file the will with the appropriate Texas court.
• Managing assets. Executors are responsible for identifying, locating, administering, and protecting assets that belonged to the deceased. Common assets include bank accounts and real estate.
• Settling debts. An executor must notify creditors and use the estate’s funds to pay valid debts, funeral expenses, estate taxes, and final income taxes. Importantly, a good executor must be able to discern which debts are valid and which are not.
• Distributing assets. Once the executor has cleared the estate’s liabilities, they then distribute the remaining assets to the estate’s beneficiaries as specified in the will.

Under Texas law, the executor can operate under either independent administration or dependent administration. Under the former, the executor can act quickly with minimal court supervision. For the latter, the executor must manually seek court approval for practically every action. Independent administration is typically much more cost-effective. However, there are some specialized instances where dependent administration might be preferable. A Houston probate attorney can make sure your estate plan accounts for this decision.

Being an executor requires both financial literacy and knowledge of the Texas probate process. That is why many people opt for a professional executor, such as a bank’s trust department or experienced Houston probate litigation lawyers.

Contact Our Probate Attorney In Texas Today To Get Started

If you have questions about probate or need assistance settling an estate, our probate law firm can help you pursue the results you deserve no matter which side of the probate process you are on.

Contact our Texas probate attorneys at Stepp Law Firm PLLC to discuss your unique circumstances with one of our skilled probate lawyers today.

We know that losing a loved one is never easy. We are proud to provide compassionate representation and top-notch personalized legal services for each client. We will be pleased to review your case during an initial appointment, which can be made by calling 713-336-7200 or filling out our contact form. Your loved one’s memory should be honored by evaluating their final wishes, whether there was a will or not, and we can help you pursue the process without delay.

Probate Frequently Asked Questions

What Is Probate?

Probate is a proceeding usually in the county court where a judge supervises the payment of debts and the distribution of a person’s property after their death. If there is no will, the Judge will appoint an Administrator who will pay debts out of the assets, and the remainder, if any, will be distributed to the beneficiaries. If there is a will, it will likely name an Executor who will do the same as regards the debts and property. The case is then closed when the Judge is satisfied that the debts have been paid and the property has been distributed properly.

Do I Have To Hire An Attorney?

Yes, in most cases where the amount of the estate is more than $75,000, a probate attorney is required.

How Long Do I Have To Probate A Will?

Four years after the person dies.

What If There Is No Will?

It is more common than not that a person dies intestate, or without a will. Again, if the estate is worth more than $75,000, your attorney will likely need to file an application to determine heirship, wherein the judge will determine who the lawful heirs should be and will appoint an Administrator to pay debts and to have the property transferred to the rightful heirs.

What Are Letters Testamentary Or Letters Of Administration?

These are letters signed by the court once the proper paperwork is filed and after a hearing by the judge, indicating that the person named has the legal authority to deal with the assets of the deceased. Letters Testamentary are used to give the Executor of the will the legal authority and Letters of Administration give the power to deal with the assets of the deceased to the Administrator appointed by the Court, where there is no will.

How Long Are Letters Testamentary Or Letters Of Administration Valid?

60 days.

How Long Does It Take For Probate?

If the paperwork is filed properly and there are no contests, a properly authenticated will can be probated in approximately 2-3 months, though more often than not, it is 3-6 months. An estate proceeding where there is no will may take longer because the Court must appoint an Attorney Ad Litem to represent the unknown interests.

What Does Probate Cost?

Simple probate, where the will is properly drawn, and there are no contests by beneficiaries or heirs, may cost as little as as $3500. If the will is not properly drawn, if there are irregularities or contests by potential heirs or beneficiaries, the fees and costs will be substantially higher. If there is no will, your probate costs will likely be at least double, or around $6,000, without a contest.