HORRORS OF PROBATE
IS IT FACT? IS IT FICTION?
By: James M. Bright
Attorney at Law
The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
In my practice, one of the most common concerns encountered is the dread of dealing with the perceived “horrors of probate.”
Many of these fears and concerns are the result of a skillful attempt by sellers of estate planning products to market their services (usually for a dollar amount that exceeds the cost of probate many times over).
In order to dispel the myth that the probate procedure in Texas is a legal horror, the following answers to frequently asked questions are offered for your consideration:
What is probate?
Probate is a court procedure by which a will is proved to be valid or invalid. As normally used, this meaning has been expanded to include all matters pertaining to the administration and settlement of the estate of a deceased person or management of the estate of a person who is subject of a guardianship.
Will the estate be tied up in probate for months or even years?
In all but the most rare of occasions, absolutely not. Assuming that the decedent’s will was prepared by competent Texas counsel and provides for independent administration (see below), in most cases letters testamentary will be issued within 2-5 weeks following application.
What are the steps involved in probating a will which calls for independent administration and which has been properly drafted, executed and witnessed?
· Applicant (the person who is asking that the will be admitted to probate) takes the original of the will to his/her attorney to be reviewed for essential elements of wills, examination for self-proving affidavits, designation of an independent executor/executrix, etc.
· The attorney will prepare an application for probate and file it along with the original of the will with the probate court in the county of the decedent’s domicile.
· Your attorney, through the county probate clerk, will provide for notice regarding the probate pursuant to state law.
· The court will notify your attorney when the statutory notice has been given and will give a date after which a formal hearing may be conducted. Your attorney will contact you and coordinate a time which is convenient to both you and the court for the hearing. This is usually 2-5 weeks after the application has been filed.
· Court appearances are normally limited to one short proceeding where testimony is presented through your attorney’s questions which offer proof of the facts alleged in the application.
· Your attorney will prepare an order for the court to sign, a statement of facts which a witness will be asked to sign and an oath to be taken by the administrator.
· Attorney will, in most cases, hand-carry the oath of the executor to the clerk of the court authorized to issue letters testamentary. Attorney will order and supply letters testamentary to the executor/executrix.
· Attorney will cause notice of the executor appointment to be printed in a local newspaper in compliance with state law.
· Attorney will work with executor to prepare and file an inventory of items belonging to the estate at the date of death. (This is not a complicated document and will speak in fairly general terms regarding items of inventory.)
· Your attorney will work with your executor to notify creditors. This serves some very useful purposes which will be discussed between attorney and executor.
· Your attorney or your executor (depending upon what is requested by executor) will coordinate efforts to pay creditors or compromise liabilities.
· Attorney will work with survivors and/or family to determine if other special needs exist.
What is the significance of independent administration?
If one factor could be highlighted to demonstrate the reason that probate is not a horror in Texas it would doubtless be the fact that Texas allows independent administration. Independent administration (emphasis on the word “independent”) is a tool which is not available in many other states and is usually not made part of wills prepared in states other than Texas.
The practicality of independent administration is that once the executor is appointed (usually 2-5 weeks), the representative who was selected by you is authorized to represent your estate without the necessity of obtaining court permission or consulting an attorney to carry out your testamentary wishes. The executor (a person that you personally selected) is charged with following the instructions that you left in your will in an effort to carry out your exact wishes.
Will my attorney be paid a percentage of the value of the estate?
The answer to this question is an unequivocal and resounding NO. Attorney fees should be based upon actual work performed. In most cases this will be the result of an hourly fee multiplied by the hours expended. In my own firm, it is our practice to set flat fees and to perform all agreed services for one predetermined sum.
How large must my estate be to need probate?
There is no dollar minimum or maximum to require probate. Although many property issues can be solved outside of probate, many cannot. There are instances where something as minor as a deposit account or check can only be practically accessed by the estate. In this case, even an asset of only $4,000.00 or $5,000.00 may require probate to fully settle the estate.
The bottom line is that probate in Texas should be neither expensive nor a horror. This writer does not wish to imply that there can not be problems which arise in probate, but it must be noted that most, if not all, of those potential problems can be avoided through thoughtful planning by competent legal counsel.
There is no practical substitute for an attorney of your choosing who will work with you to express your exact testamentary wishes at the time of will drafting.
James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street
in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or( 281) 586-8277 for more information about wills or probate in Texas, please see- www.houstontxprobate.com