Texas Probate and Estate Planning FAQs

If you wish to specify who your assets will pass to after your death, then you should create a will or some type of testamentary instrument.  In Texas, if a person passes away without a will this is referred to as dying “intestate”.  When a person dies intestate the Texas Estates Code rules of intestate succession will apply. The purpose of the intestacy rules is to provide a way to distribute a person’s property when they die without a will. Therefore, if you pass away without a will your property will be distributed, but it might not go to the people you want it to go to.  Proper estate planning advice from an attorney allows you to be confident that your wishes will be carried out. Contact our League City office to set an appointment to discuss planning for your specific needs.

A Will is a testamentary device used by many estate planning attorneys that is revocable during the testator’s lifetime and becomes operative at the death of the testator. What this means is that a person who has made a Will is free to change or revoke their Will during their lifetime, and then at death the will becomes fully operational and may then be offered into probate.  A Will must be signed by the testator, signed by two witnesses above the age of 14, and the signing must be part of one contemporaneous act.  Furthermore, the testator’s Will must be admitted to probate within four years of their death in order to have an executor appointed.

A Will’s primary purpose is to identity the testator, as well as their family, in order to dispose of their estate assets by providing specific instructions. The testator typically appoints and Executor, as well as an alternate Executor, in their Will. The Executor is the person that represents the estate; addresses any estate debts; collects the estate assets subject to probate; and then ultimately disperses those assets the the beneficiaries named in the Will. A Will only controls what are called ‘probate assets’. Assets such as life insurance, bank accounts, or investment accounts, may have a named beneficiary listed as part of the Payable on Death agreement between the account holder and the financial institution. If there is a named beneficiary on any such account, then those funds pass outside of probate directly to the named beneficiary. However, if the account does not have a named beneficiary, then the Estate becomes the default payee, and those funds are controlled by the distribution instructions in the Will.

If you need help making sure your estate is set up correctly, contact our office any time. We offer flat-rate fees on Wills, Power of Attorney, and Transfer on Death Deeds. You will likely leave your heirs a laundry list of problems if you were to pass away with out a Will. Contact our office and let us create a Will according to your specific wishes.

A trust requires the legal title of the trust property to be placed in the name of the trustee. The trustee then manages or distributes the trust property for the benefit of the named beneficiaries of the trust. Changing the legal title of the trust property to the name of the trustee can be expensive and time consuming, but depending on your particular circumstances this might be a viable estate planning option. Trusts are growing in popularity due the fact that trust property can avoid going through probate and pass directly to beneficiaries. A will on the other hand does not require you to change the legal title of property. This aspect of a will makes it simpler to sell or manage assets yourself.  Property passing through a will must go through probate (unlike a trust). However, Texas allows for the appointment of an independent executor, and thus makes the process fairly uncomplicated. Furthermore, many times a will may contain a “contingent trust” that will only apply in certain situations. We are able to draft wills that contain contingent trusts for all of our clients located in or near Friendswood, League City, Alvin, Kemah or Galveston.

A Contingent Trust is a section typically included in a Will that allows the testator (i.e. person making the Will) to have a Trustee named to manage assets for a beneficiary that is under a certain age, typically 25 years old. The purpose of this Contingent Trust is to prevent a minor child with no financial experience from receiving a sum of money with no guidance in how to handle the money. The Trustee in a Contingent Trust would have certain duties and authority to handle the money (or any assets) for the benefit of the beneficiary. Once the beneficiary reaches the age you select (i.e. 25), then the Trust is dissolved and the funds pass to the heirs.

Which estate planning tool is right for you depends on your particular circumstances and long term goals.

It is recommended that spouses each have their own will. In Texas, when your spouse passes away their portion of the community estate is still subject to probate. Many types of property will pass automatically to the surviving spouse. Property that is held with rights of survivorship, in joint accounts, or something similar, will pass automatically. However, Texas is a community property state, and this means that each spouse typically has a ½ interest in the total marital estate. In most cases, spouses elect to give their entire ½ interest to the surviving spouse, but this is not always the case. There are many other issues that may arise after the surviving spouse passes away as well if they do not have their own will. Therefore, it is generally better for each spouse to have their own will.

If you do not have a Will, then your interest in the community estate will pass to your heirs-at-law. Sometimes these heirs may or may not be the people you actually want your estate to pass to. The heirs-at-law are found in the Estates Code: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.201.htm

The need to update a will depends on a person’s individual goals and circumstances. However, if you have had children since making your will; have been married or divorced; if a spouse has passed away; if you have acquired additional property not described in your current will; or have not updated your will in several years it may be a good idea to either draft a new will or update your current will. We also offer consultation services if you would simply like to have an attorney review your existing Will in order to make a decision whether or not you need to update or amend your Will.

In Texas, if a person passes away with a will it is called dying “testate”. However, if a person passes away without a will this is referred to as dying “intestate”. When a person dies intestate the Texas Estates Code’s rules of intestate succession will apply. The purpose of the intestacy rules is to provide a way to distribute a person’s property when they die without a will. Therefore, if you pass away without a will your property will be distributed, but it might not go to the people you want it to go to. If you and your spouse have step-children, then little or no property may pass to your spouse. The easiest way to ensure your property will go to the people you desire it to go it is by making an appointment with a lawyer and obtaining proper estate planning advice. The heirs-at-law are found in the Estates Code: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.201.htm

There are multiple versions of probate available in Texas. The most commonly used probate options are Independent Administration and Muniment of Title. Which type of administration is selected must be in the best interest of the estate. Most well drafted wills provide for an executor to run an independent administration of the testator’s estate as that is the process that results in our clients obtaining what are called “Letters Testamentary”. These Letters Testamentary are the documents that banks, investment accounts (i.e. 401K, retirement accounts, etc.), and life insurance companies will require in order to turn over funds due to the Estate.

Independent administration: The person named as the Executor in the Will begins this process by contacting an attorney and filing an Application for Independent Administration with a probate court. The goal of this process is to allow the Executor to have the legal authority to accomplish the directions as detailed in the Will. This will typically include transferring real property (i.e. house/property) to the beneficiaries named in the Will. However, before taking any action on behalf of the Estate the Will must first be admitted to probate and the Executor must be qualified to serve as the executor. A person that has been convicted of a felony of a crime of moral turpitude will not likely be able to serve as the Executor.

The exact court in which the Executor filed the Will for probate depends on the county in which the decedent was domiciled at the time of his/her death or the county in which the principal assets are located. After being qualified, the Executor of an estate that is subject to Independent Administration will have broad authority to administer the estate. The Executor will be able to act independently of most court supervision, and this is in part why it is called “Independent Administration”. After being named as the Executor, the Executor must file an inventory of estate assets with the court, determine the assets value, compile a list of claims of the estate, publish a notice to creditors, and provide certain notices to named beneficiaries. After these steps are all complete the Executor must pay/reject debts owed by the estate, and then collect/distribute the estate assets to the named beneficiaries. While this process may sound complicated, an experienced attorney can assist you in moving swiftly and confidently through this entire process.

Muniment of Title: Sometimes the only estate asset that needs to be addressed is a piece of real property, such as a house, multiple homes, rental property, or other similar real property asset. If there is no need to appoint an Executor, then a muniment of title might be the most cost effective probate option. The goal of this process is to utilize the Will as a Deed to transfer the ownership interest in real property to the named beneficiaries in the Will. When a living person sells a home or other piece of real property, the most commonly used instrument to transfer ownership interest from one person to another is a Deed. However, after a person has passed away they obviously can no longer sign a Deed. Therefore, your attorney will obtain a court order validating the Will and files a copy of the Will itself along with this court order in the real property records. Once these documents have been recorded in the property records the ownership interest is conveyed to the heirs listed in the Will. Because the court does not appoint an Executor in this process this may be the most cost effective version of probate available.

Independent administration provides for an executor to have broad powers to administer the estate with little court involvement.  However, in dependent administration the executor must seek judicial approval before taking almost any actions on behalf of the estate. This is why most estate planning lawyers in Texas draft wills that provide for an independent executor.

Your spouse’s estate is subject to being probated whether or not they died with a will. It is possible the process could be less burdensome than you might expect. You might be able to simply admit the will in order to re-title certain property, but there is some property will pass automatically. An example of property that will pass automatically is life insurance. With life insurance the policy holder will name a beneficiary, and that beneficiary will be paid upon the policy holder’s death without the funds ever going through probate. Whether or not it is necessary to probate a spouse’s will depends on several factors that can be discussed during a consultation with an attorney.

Only probate assets will pass through probate. Probate assets include, but are not completely limited to, real property (i.e. house or acreage) and personal property (i.e. jewelry, cars, etc.). Non-probate assets are assets owned by the decedent that will pass outside of the probate process. Non-probate assets typically pass automatically upon death. Life insurance that is payable on death to a named beneficiary is an example of a non-probate asset.

When planning your estate it is necessary to determine which assets are probate assets and which assets are non-probate assets. Your will only controls probate assets. Therefore it is necessary to make sure any life insurance policies or joint bank accounts are set up to pass to the beneficiaries you desire them to pass to.

Separate property is any property owned by one spouse before marriage; property acquired by a spouse from a gift, inheritance, or personal injury lawsuit compensating the injured spouse for pain and suffering; or any property that is agreed to be separate property. Community property is all property that is not a spouse’s separate property. Also, it is commonly overlooked that income from a spouse’s separate property is community property. The spouse seeking to prove that a specific item of property is their separate property bears the burden of proof.

It is difficult to give an exact timeline for how long it will take to distribute estate assets. However, it is possible that some assets may be distributed soon after the will is admitted to probate. Keep in mind that life insurance policies are payable on the death of the policy holder, and these policies are not subject to probate. Assets such as life insurance, bank accounts, retirement accounts, or any similar type of account may be payable to a named beneficiary. In most cases, when you open any type of account you will designate a beneficiary. If you were to pass, those funds are distributed through a ‘payable on death’ contract to the named beneficiary outside of probate. For example, if you name a beneficiary on a life insurance policy, and you pass away, that beneficiary is paid directly through the payable on death contact outside of probate. However, if you do not name a beneficiary on the same policy, and you pass away, then your Estate becomes the payee of that same policy. In that case, the funds are distributed according to your Will as part of your estate.

In most of our probate cases we can have an Executor appointed to represent the estate within 10-12 weeks after starting the probate process. At that point the Executor is authorized to begin collecting estate assets in order to disperse them to the named heirs in the Will. However, we typically suggest that the Executor hold some portion of the funds in order to pay off any estate debts. Once the executor is appointed the lawyer must publish what is called a ‘notice to creditors’. That notice to creditors is published in a news paper in order to notify any potential estate creditors where they may present any claims against the estate. The creditors are given four (4) months to present any claims to the estate. However, this does not mean the Executor must hold all of the funds until the end of the four months. The Executor does want to ensure that they have sufficient funds on hand to pay any estate debts.

If you have a child that will be reaching the age of majority soon (18 years old), or have a spouse or grandparent that is no longer able to make decisions for themselves, you may need to file an application with the court to have someone named as legal guardian. Our guardianship attorneys handle cases in both Galveston County, Houston, and all of Harris County.  After you are named as guardian of the person and/or their estate, you will be allowed to once again take care of your loved one and have the legal protection you need. This process may seem complicated and frightening, but we will guide you through it as quickly and comfortably as possible.

In Texas, there are two types of guardianships. There is a “guardian of the person” as well a “guardian of the estate”. Depending on your situation and needs the attorney will submit an application for one or both of these options. Typically, most individuals that do not have many assets will only apply to become “guardian of the person”. This process is initiated by submitting an application with the court of proper jurisdiction, and becomes final after a hearing where the applicant is named as guardian.

The first step in a guardianship will be to have a medical doctor examine the person for whom you are seeking a guardianship. Our attorneys would be happy to send you a copy of this required form and schedule a meeting with you so that the process can be as quick and seamless as possible. Feel free to submit a message online or give us a call so that we can discuss this process in greater detail. Our attorneys practice guardianship law in Galveston, Houston, and all of Galveston County and Harris County..

Yes, it is possible to avoid going through the guardianship process in certain circumstances. If as an adult you make the required power of attorney documents you can name the person whom you would like to handle your affairs should the need for a guardian ever arise. However, if you have a minor child who has a mental or physical condition then it may not be possible for them to appoint a guardian without going through the guardianship process. Our office is located in League City and handles a wide range of probate issues. We would be happy to consult with you on this issue and help you pick the best option to fit your circumstances.