What is Probate Estate Administration?
Probate is the legal process concerning a decedent’s estate. We can assist you with these matters while understanding the emotional dynamics.
After the death of a loved one, one of the most difficult issues survivors face is dealing with the loved one’s estate. In Texas, there are a variety of procedures for handling the estate of person who has passed away. For example, an estate consisting of only non-probate assets does not need to be probated and an estate with few assets can be handled without a full probate administration.
What is the the Probate Process
The probate process usually begins with a will. Without a will, probate can drag on and leave your loved ones waiting for their inheritance.
Probate usually includes:
- Proving that the will is valid
- Identifying and cataloging the property
- Appraising the property
- Paying debts and taxes on the estate
- Distributing the property to the beneficiaries according to the will
- Naming an executor and his/her duties.
The probate process usually begins with the executor filing the papers with the probate court. When the will is proven valid, a list of the property and the various debts is given to the court. An official notification of death is sent to family and any beneficiaries. It can takes months, maybe even years for probate to move forward; it’s important to prepare thoroughly for probate to move forward properly.
The Executor’s Duties
The executor has an important role in probate. He/she is trusted with protecting and managing your property after your demise. An executor is a trusted individual who handles the settlement of your estate in the manner that you have laid out. Most of the executor’s duties are described by the will, but they will vary according to your wishes and to the rules of the court.
Some of the executor’s duties are:
- Deciding when and if probate is necessary
- Creating and inventory of assets and debts
- Managing the details of partnerships and other existing agreements
- Providing tax information of the estate to the government or to a qualified tax attorney
- Understanding and disposing of debts against the estate
- Dealing with insurance companies, including sending a death certificate to facilitate payments to the beneficiaries.
- Making any arrangements necessary for minor children
- Appearing in court as a representative in court proceedings whenever necessary
- Filing the will with probate court.
Additionally, the executor has a fiduciary duty the estate. He must communicate properly with the beneficiaries and may not mismanage the assets of the estate. In other words, the executor cannot buy, sell or make a profit off your assets. This is known as self-dealing.
What happens if you don’t have a will?
If you don’t have a will when you die, you are considered to have died intestate. In this case, the state takes responsibility for dividing up your property among your descendants. Every state has different laws, but for the most part, the property will go to family members. It all depends on whether you are married, have children and what kind of assets you leave behind. The courts follow the rule of intestate succession to decide who gets your property. This is set up according to the relationship they have with the deceased and it also varies state to state.
There are numerous ways to probate an intestate estate, but it will definitely take more time and probably more money than if you had a will and a detailed estate plan. If there is no executor, then the court will appoint one. The various potential heirs need to be notified by a notice of application. The court will use its own judgement to decide who inherits the estate, but it will take time to sort out the debts, assets and other details of the estate.
Handing Taxes and Court Costs of the Estate
For the most part, if you have done your estate planning in advance, the probate process will take less time and cost less money. However, most estates will owe estate taxes and will require a closing letter from the Internal Revenue Service. It can take anywhere from six months to a year to receive a response from the IRS. Luckily, only a few estates are subject to federal estate taxes.
In addition to taxes, the estate will have to pay the costs of probate. The court will take a portion of the estate after the debts have been paid and may use money from the estate for lawyers or guardianship. The costs will also include attorney fees, court costs, appraisal and accounting fees, as well as the executor fees. The longer the probate process takes, the more of the estate money will be used up.
There are a lot of ways to minimize your probate costs. You might be able to transfer your property into trust or set up payable-on death designations. Additional ways to reduce probate costs include making tax-free gifts and using joint ownership laws so that the property transfers automatically. Generally speaking, a will is crucial to helping probate administration go quickly, but there are many tools to create an effective estate plan that prevents drastic reduction of your estate.
How Long Does the Probate Process Take?
Some states have very complicated probate laws which means that the standard time for probate can be anywhere from eight months to several years. Your beneficiaries must wait until the process is complete before receiving their bequests. There are numerous ways to make the probate process simpler, but it takes careful planning that is tailored to your assets and your wishes. A simple estate will pass through probate quickly, but even an estate with complicated assets and bequests can be administered efficiently.
At Krupa Downs Law, PLLC we know it is difficult trying to handle the emotions of grieving over a beloved spouse or family member, while dealing with the details of the probate process. We can help you determine the best method for handling your loved one’s estate.