Do You Need To Probate An Estate?

Probate is an important legal procedure that derives from the Latin verb, “probare,” meaning to try, test, prove, or examine, meaning to “prove a Will.” A Will has no legal effect, until it is admitted to probate, or proved that it is the Will of the deceased.

A Will distributes the property of an individual when he passes. A Texas probate court determines if there is a valid Will or applies the state’s intestate succession laws if there is no Will. However, you can avoid much of the complexity of probate with either properly drafted Wills providing for independent administration or a revocable living trust.

The Probate Process

What happens in probate? The deceased cannot take his property to the grave, and, thankfully, his debts either. Simply, probate, or estate administration, is the winding down of the financial affairs of the deceased, by collecting assets, selling or distributing them, paying or settling debts, and distributing what is left over to the beneficiaries. Anyone with property should want to determine where those assets go and who gets the assets there. A Will or Trust does just that.

At James Law Firm, P.L.L.C., we also look for ways to avoid a full estate administration, such as small estate affidavits, affidavits of heirship, and probate as a muniment of title.

Why You May Want To Avoid Probate

If you have a straightforward estate, probate may not be that significant, but you will want a properly drafted Will. However, if you have substantial assets, hard to value assets, such as partnership interests or privately held corporate stock, or own a business or professional practice, designing an overall estate planning strategy to avoid probate can be useful and cost-effective.

There are genuine reasons to implement a revocable living trust to avoid probate such as:

• It can be expensive in certain situations
• It can be time consuming
• It creates a public record of the assets you own and the value of those assets, such as real estate and businesses (note that having no debts can dispense with the requirement to file an inventory document with a probate court, a public record)
• It is more likely for a person to challenge a Will successfully than a revocable living trust
• It can be burdensome and expensive to probate in multiple states, if you own real estate in multiple states
• High net worth individuals should use revocable trusts if they want to appoint trust companies to manage their affairs upon incapacity.

A revocable living trust and other planning can avoid these issues and may have additional benefits of wealth preservation, tax minimization, and greater flexibility.

Probate And Estate Administration

Have you been named an executor of an estate in Texas or a trustee of a trust in Texas? As an executor, you have fiduciary duties to the estate and heirs. Estate administration must be done properly, and our lawyer can help advise you on your duties and responsibilities, and execute those duties and responsibilities.

We can also assist should probate litigation occur due to disappointed heirs or individuals contesting the validity of the will. Because of the high standard of care executors owe the estate, relying on the advice of our attorney can help prevent mistakes or errors that could lead to questions and ultimately to litigation.

Probate And Estate Fiduciary Services

Richard C. James also acts as a professional executor and trustee for certain clients and for others.  If a client has no trusted family members or friends (or has some, but who are elderly themselves), a client has two choices for executors and trustees: a professional trustee (not a trust company) and a trust company.  As a professional executor or trustee, I handle the administrative matters, while working with the client’s financial advisers who manage the client’s money and finances.

Probate May Be Necessary

In some cases, probate is necessary, such as and when an individual dies without a will (intestate) or when a guardian may need to be appointed. At James Law Firm, P.L.L.C., our lawyer can determine and locate heirs and administer estates without heirs. Again, it is important to emphasize that proper estate planning can ensure neither of these services are needed.  Texas probate is not expensive as with other states, such as Florida and California, so probating a Will is not necessarily a bad undertaking.

Contact Us For Help With Probate

Probate can be complex, but we can help. Our attorney can advise you if you are an executor and can help answer questions if you have issues or concerns regarding the probate of an estate in Texas. Contact our office in The Woodlands at 832-764-7885 or use our online form.