R Dean Davenport
ATTORNEY AT LAW
All Our Estate Planning Services are Still Operational.
Our estate planning services are still going strong during the Coronavirus National Emergency, including the drafting of Last Will and Testaments, Living Trusts, Medical-Financial Power of Attorney documents, and Healthcare Directives (Living Wills). The entire drafting process is completed online and over the telephone. There is no charge for estate planning phone consultations with our attorney. After the drafts are completed, the documents are uploaded to your secure online client portal account for your review and approval. After you review and approve the drafts, the documents are ready to sign. Please note that the scheduling of signing appointments remain subject to the Office of Court Administration Travel Authorization: OCA Travel Authorization.
How Do I Request a Secure Client Portal Account?
You may request access to the secure client portal by either sending an email or calling us during our regular office hours (Monday-Frioday, 8am to 6pm). After your initial free phone consulation with our attorney is completed, we then will create a online acccount for you.
How Do I Login to my Secure Client Portal Account?
Accessing your secure client portal account is easy. You may either use the link to the secure client portal on our website by visting the Client Login page. You may also access your client account directly by visting the MyCase Account Login page.
Are You Accepting New Probate and Guardianship Cases?
Yes, we are accepting new probate and guardianship cases. Although Texas Courts were closed for much of 2020 for non-essential matters pursuant to the Twelfth Emergency Order Regarding the COVID-19 State of Disaster issued April 27, 2020, Texas Courts now have mostly returned to normal operations; however, many courts still are conducting hearings for uncontested matters via ZOOM videoconferencing as per the Fifty-First Emergency Order Regarding the COVID-19 State of Disaster issued by the Supreme Court of Texas on May 25, 2022. For more information about probate matters, please contact us for a free phone consultation.
For more information please request a copy of our Legal Services Schedule (PDF format).
When it comes time to plan for your family's financial future by creating an estate plan, there are several options from which you may choose. Some of the most common options include a last will and testament, a revocable trust, or an irrevocable trust. For many individuals, estate planning may seem overwhelming, as terms like revocable and irrevocable trust can sound confusing and you may not know which option will be right for you. While each estate planning option provides its own unique benefits and determining which option will be right for you will depend on a variety of factors, many people find a revocable trust to be the best estate planning option. Indeed, it provides them with the flexibility, privacy, and security they are looking for in an estate plan. To help you make this important decision, here is a look at answers to the most frequently asked questions people have about revocable living trusts.
What Is a Revocable Living Trust?
A revocable living trust is a legal arrangement in which an individual transfers their property and assets into a trust where it is held for the benefit of the creator during their lifetime. While property within the trust technically belongs to the trust, the trust's creator can continue to benefit from it as its primary trustee. Upon the creator's death, assets within the trust are then transferred to the beneficiaries that the creator designated before their death. Then, the distribution of these assets is overseen by a trustee that the trust creator designated to manage the trust after they are gone.
What Does It Do?
So, what exactly does a revocable trust do for trust creators? One of the primary features of a revocable living trust is that, as the name implies, it is revocable. This means that the creator of the trust can still make changes to the trust during their lifetime. Should the trust creator choose to add or remove property from the trust, or change their beneficiaries, they will have the option to do so at any time. Revocable trusts then afford a greater level of flexibility than other estate planning options, as you do not have to worry about whether you are making the right decision when establishing your trust. If you later decide to remove a beneficiary or reclaim property from the trust, you will have the right to do so.
How Does It Differ From an Irrevocable Trust?
There are key differences between a revocable and irrevocable trust, but the primary difference is right in the name. Unlike a revocable trust, which can be altered by the trust creator during their lifetime, an irrevocable trust cannot be altered once established. Once you create the trust and fund it by placing assets in it, an irrevocable trust cannot be changed. Even if you have a falling out with a relative and don't want them to be a beneficiary anymore, there is little that you can do to make changes to an irrevocable trust once it has been established, and you cannot act as trustee during your lifetime.
Once you place assets in an irrevocable trust they are no longer yours and you cannot reclaim them in the future. However, you can continue to benefit from the trust, and income generated by the trust will be distributed to you during your lifetime. So why would anyone choose an irrevocable trust then? There are certain financial benefits that you and your estate can gain through the use of an irrevocable trust, which is why it is important that you consult an estate planning attorney who can help you to decide if a revocable or irrevocable trust is right for you.
What Are the Benefits of Choosing a Revocable Trust?
Aside from the obvious benefit of choosing a revocable trust for the flexibility it provides, you may be wondering what other benefits a revocable trust can provide. Revocable living trusts are one of the most popular estate planning options as they provide trust creators' with a variety of benefits such as privacy, control, and protection from court challenges after the trust creator's death. Here is a look at just a few of the many benefits choosing a revocable living trust can provide you and your family with.
Helps Your Estate Avoid Probate
Probate is the court-supervised process in which a deceased person's estate is distributed to their heirs by a judge. This process can be complicated and lengthy, which can put additional stress on your relatives during an already difficult time. Additionally, the probate process can be costly, reducing the portion of your assets that your beneficiaries will receive. Contrary to popular belief, even if you have a will your estate will likely still have to go through probate, as a judge will need to ensure that the will is valid, and they will oversee the distribution of your assets in order to ensure that your will is followed.
Fortunately, you can help much of your estate to avoid the probate process by creating a living trust. Assets that you place in a trust can bypass the probate process, as these assets technically belong to the trust. Your assets can then be distributed to your designated beneficiaries without court intervention. However, it is important to remember that only assets placed in your trust avoid probate, so a small portion of your estate not placed in the trust may still be subject to the probate process. This process should be simple if most of your assets are being handled by your trust.
Maintain Your Privacy
Not only can the probate process be complicated and costly, but it can also put your family's privacy at risk. What many people do not realize about probate is that, when an estate passes through probate, a list of its contents becomes public record. For those who are concerned about their family's privacy, the probate process can feel like an invasion of privacy as anyone will be able to see what was in their estate at the time of their death. A living trust can then help to protect your family's privacy by keeping the division of your assets after your death private.
Ensures That You Are Taken Care Of
A revocable trust can also help to ensure that you are looked out for in the event that you become incapacitated and can no longer care for yourself or make decisions regarding your health and wellbeing. With a living trust, your appointed trustee would take over your affairs automatically if you become incapacitated, and your family will not have to go to court or appoint a conservator in order to ensure that you are taken care of. You can even make stipulations in your trust regarding how you are to be cared for in the event that you become incapacitated. Further, you can even require that certain conditions have to be met before you are declared incapacitated, such as requiring an evaluation by a specified doctor. This ensures that you are taken care of, and your interests are looked after, no matter what happens to you down the road.
Control What Happens to Your Estate
Considering that you will have worked hard over the course of your lifetime to cultivate your estate, it is understandable that you will want to have absolute control over what happens to your assets when you are gone. However, if your estate goes through probate, this may not be the case. Even if you have a will, a judge will ultimately have final say over what happens to your estate. If it is important to you that you have complete control over where your assets go after your death, you should seriously consider establishing a revocable trust. A revocable trust will help the bulk of your estate to avoid probate, and it gives you the flexibility to continue to make changes to your estate during your lifetime, ensuring that your estate is handled exactly as you would like after your death.
Protection From Court Challenges
While court challenges to estates are not that common, they do happen. Fortunately, if your estate is challenged by a relative after your death, it will be much more difficult for them to challenge a revocable trust than it would be for them to challenge a will. Not only is it harder to challenge the validity of a trust, but with a revocable trust you will have been actively involved in managing the trust throughout your lifetime, which would demonstrate to the court that your intention was for your estate to be handled according to the terms of your trust. This is another way in which a revocable living trust can help you to ensure that your assets are divided according to your wishes upon your death.
Do I Need a Revocable Living Trust?
Hopefully, the above guide will help to give you a better idea of whether or not a revocable living trust is the right estate planning option for you. A revocable living trust can be a great option if you want the flexibility to continue to make changes to your estate throughout your lifetime, and it can be ideal for those looking to keep their estate out of probate. However, you should always consult an estate planning attorney when making these important decisions regarding your estate. Contact us to learn about how we can help guide you through the estate planning process.
For more information please request a copy of our Legal Services Schedule (PDF format).
Regardless of your age or financial standing, proper estate planning is critical in order to ensure that your loved ones are looked after once you are gone, and that your assets are dispersed as you wish upon your death. Of course, when it comes time to begin the estate planning process, many people are overwhelmed by their options and are unsure what type of estate plan will be best for them. In particular, you are not alone if you are unsure what the difference is between a will and a living trust and how you will know which option is right for you, as a lot of confusion surrounds these two estate planning options.
While wills and living trusts are both common forms of estate planning that can be effective in helping individuals to transfer their assets to their loved ones when they die, there are distinct differences between these two options. Determining whether a will or a trust will work best for you will depend on your unique situation and what you are looking to get out of your estate plan. To help you make this important decision, here is a look at answers to just a few of the most common questions people have about wills and living trusts.
What Is a Will?
While wills are a form of estate planning that people are often the most familiar with, there is still a lot of confusion surrounding what wills can and can't do. A will is essentially a legal document that directs how your assets should be distributed upon your death. A will can then help to speed up and simplify the probate process by giving the judge presiding over the distribution of your assets a framework to go off of when making decisions regarding the handling of your estate. However, simply writing down your wishes does not constitute a legal will.
In order for a will to be valid, it must be filled out following specific guidelines, and it must be signed and witnessed. In addition to outlining how you want your assets to be handled upon your death, a will can also be used to appoint a guardian for your children should you die while they are underage. A benefit of wills is that they are easily revocable, which means that you can make amendments to them at any point during your lifetime up until your death.
What Is a Trust?
Alternatively, a trust is essentially a legal arrangement in which an individual transfers their property and assets into a trust where it is held for the benefit of the trust's creator during their lifetime. While any property placed into a trust technically belongs to the trust, the creator can continue to benefit from the trust as a trustee.
Upon the trust creator's death, the assets within the trust are transferred to the designated beneficiaries outlined by the trust, and the distribution of these assets is handled by a trustee the creator designated to take over the management of the trust after they die. Thusly, trusts can help to shield your assets, and your beneficiaries, from the stress and cost of the probate process, as assets within a trust are passed directly to beneficiaries without the need for the intervention of probate court.
How Are They Different?
How They Work
As you can see, there are a few key differences between wills and trusts in what they do and how they work. One of the primary differences between a will and a trust is that a will does not take effect until after your death, while a trust becomes valid and takes effect once you fund the trust by placing assets in it. It is important to remember, however, that trusts are only useful when they are funded. Assets that you do not place in the trust will still be subject to the probate process upon your passing.
Amount of Control
Another key difference between wills and trusts is that trusts can give you greater control over your estate, as you have direct control over what happens to the assets you place in the trust once you are gone. Alternatively, even if you have a will, the final decision regarding the distribution of your estate will be left up to a judge. With a living trust, you can also make arrangements for how you want to be taken care of should you become incapacitated and can no longer make decisions regarding your health and wellbeing. While incorporating power of attorney into your estate planning if you choose a will can afford you some protections should you fall ill, living trusts give you greater control by allowing you to specify how you are to be cared for should you become incapacitated.
Difficulty in Establishing One
Of course, one of the primary benefits that wills provide over trusts is that they are much simpler to establish. One of the primary reasons that wills are such a popular estate planning method is that they do not take long to set up and the process of doing so is affordable. Alternatively, living trusts are complex to establish and can be costly. Additionally, trusts require maintenance over the course of your life, which is not the case with wills. This can make trusts a more complex estate planning option that is less preferable for those who do not want to think about their estate plan once it is established. A living trust also does not allow you to make arrangments for the care of minor children. While you can stipulate in the trust how a child will be cared for financially upon your death, you can't designate a guardian in a trust.
How Do I Know Which Option Is Right for Me?
After learning more about wills, trusts, and the differences between these two estate planning options, you may find yourself asking how you will know which is right for you. Given how different wills and trusts are, it is understandable to be unsure which you should choose. Ultimately, whether a will or a trust will be right for you will depend on your circumstances and what you are looking for your estate plan to accomplish. However, considering a few important factors can help you make this important decision. A few things that you should consider when deciding between a will and a trust include:
Taxes
When trying to decide between a will and a living trust, it is important to consider the estate taxes in your state. One of the main reasons why living trusts are so popular is that they have the ability to lessen the amount of taxes your estate is subjected to. The fact is that you have worked hard for your money, and you will want as much of your assets as possible to go to your beneficiaries. While a living trust may be able to shield your estate from certain taxes, how beneficial this will actually be will depend on a variety of factors including the taxes in your state and the value of your estate. Depending on your unique situation, you may find the difference in the amount of taxes your estate would be subjected to with a will minimal.
Your Location
Ultimately, your location can greatly influence which estate planning option will be best for you. The fact is that laws regarding the handling of estates, including probate law and estate taxes, can vary greatly from state to state, and what may be advantageous in one state may not be in another. This makes it critical that you consult an estate planning attorney who can help you to determine what will work best given your unique situation.
Privacy
Of course, one of the biggest factors that you will have to consider when trying to decide between a will and a trust is how important protecting your family's privacy is to you. What many people do not realize is that when an estate goes through probate, the estate, its contents, and how it is ultimately divided all become public record. While this may not be of concern to everyone, if your family's privacy is of the utmost importance to you, then you may want to consider establishing a trust in order to keep as much of your estate as possible out of probate and the public record.
Your Potential Trustee
A big factor in determining if a living trust will work for you is whether or not you have someone who you can trust to be a trustee after your death. Naming a trustee is a serious decision, as you must be able to trust the person you choose to handle your estate in the way you would want without court intervention. The fact is that unless you have someone in mind who you can trust completely to handle your estate, a will might be a better option as the handling of your estate would then be overseen by a judge.
The Importance of Partnering With an Estate Planning Attorney
As you can see, choosing the right type of estate plan can be a complicated decision that will depend on a variety of factors. Many people find choosing a will and a trust to be the best option, as adding a "pour-over" will to your estate plan on top of a trust allows you to make plans for assets that are not included in your trust, ensuring that your entire estate is handled according to your wishes after you are gone. However, considering how complicated the estate planning process is, it is recommended that you consult an attorney before you make any final decisions regarding your estate.
An attorney can walk you through your options and help you to decide what type of estate plan will be best for you, and they can help you to draft a valid estate plan that will hold up after you are gone. Contact us to learn more about your estate planning options as well as to find out how we can help you to prepare for your family's future.
For more information please request a copy of our Legal Services Schedule (PDF format).
In McKinney, TX there are clear steps you have to take, regardless of whether or not the person who passed away had a will. The term “probate” refers to administering a persons will. If the person had a revocable living trust, irrevocable trust, or another type of comprehensive estate plan, this may be referred to as “estate administration."
Even though Texas has more simple an straightforward estate laws than most other states, it’s still possible to run into issues when administering an estate or will. People can make the mistake of choosing the wrong form of probate, or deal with contests to a will, disputes over who will inherit money, businesses, land, or personal belongings. Many people don’t update their will, and if someone named in a will is no longer alive this may also require additional steps to be taken. Attorney R. Dean Davenport has helped clients looking for a probate attorney in McKinney, TX navigate these issues with utmost expertise for nearly a decade.
If you have recently suffered the loss of a loved one and are named in their will, or just want to be sure their wishes are carried out properly, contact Dean today to discuss your probate case. We’ve taken the time to highlight a few common frequently asked questions below, but given the nature of each case is different, we recommend calling us directly so we can best address your specific matter.
What should I do if someone passes away without a will?
This is referred to as intestate distribution. Assuming you are not married, the Texas Estates Code outlines the following guidelines for administering an estate for someone who had no estate plan or will:
Assuming both of the descendants (person who has passed away) parents are living, the estate will be distributed evenly among the two parents.
In the event that you have brothers or sisters, your parents would receive 50% of the estate, and the other half would be split amongst your siblings.
In a situation where the person who passed doesn’t have a surviving mother and father, the estate would then be distributed evenly against your siblings, assuming they had them. For a person with no brothers and sisters, the same 50/50 rule would apply, but only to the surviving relatives on the mother's and father's sides of the family.
What if they were unmarried but had children?
In this scenario, your assets and belongings are left to your children. If you have multiple descendants (children), the assets are typically divided evenly among them. If you or a loved one has had a relative pass away in this scenario, call our office and we can provide you with a better understanding of your exact situation.
What happens if they were married?
People make the common mistake of assuming just because they were married, that their spouse will inherit everything they had worked hard to secure throughout their life. Unfortunately, this is not always the case given there may be assets and belongings that may or may not be considered to be “community" property. In Texas, community property is anything that was acquired or owned by the couple during marriage. If there are business entities (e.g., partnerships, LLCs) owned by the decedent, this will also affect whether or not the surviving spouse will automatically inherit the assets of their loved one.
Probate and Estate Administration in Texas
The Stages of Probate in Texas
Every situation is unique, but the following steps are required in every probate matter in the state of Texas:1. Interpreting the decedent’s (person who passed) will:
○ Ideally, the person who passed away was as detailed as possible in their will or trust. Naming specific people and who exactly will receive which assets is an example of this. Sometimes people unfortunately use an antiquated template which may use vague terms such as “beneficiaries” for example, or “heirs-at-law”. The State of Texas would still consider this to be a valid will even though no one specific was named, and even creditors could now be in a position to apply for probate of the will.
2. Filing the appropriate paperwork with the Court to begin the probate process:
○ Some of the common forms include affidavits for heirship of a motor vehicle, affidavit of heirship, and applications to determine heirship. Some of these forms are only necessary if the person who passed away did not have a will.
3. Applying for executorship: Texas has some basic requirements for applying for executorship.
● You must be at least 18 years old, and be considered of “sound mind” by the court. (Tex. Est. Code Ann. § § 304.003, 1002.017, 1002.019.)
● Texas also has restrictions on a person who CAN NOT apply to be the executor or executrix of an estate. For example, if you have been convicted of a felony offense under the state or federal penal code in Texas and haven’t had your charge pardoned, you may not be named as an executor of an estate. (Tex. Est. Code Ann. § 304.003.)
4. Taking an inventory of and appraising assets, including but not limited to:
○ Personal belongings
○ Property
○ Businesses
○ Vehicles
○ Stocks and Brokerage Accounts
○ Bank Accounts
○ Contents of safety deposit boxes
5. Paying any creditors with a valid claim
○ Unfortunately death doesn’t cause a person's debts to do disappear. If you are the named heir of an estate, it’s your responsibility to comply with laws to ensure that outstanding debts are resolved.
○ In certain cases, debts can go unpaid if for example there isn’t enough money available to resolve the debt, but to better understand the situation, you should speak with a qualified probate attorney for the best evaluation.
6. Transferring assets to the appropriate heirs:
● This can vary in complexity and time based on the size and value of the estate, whether the person had a will or not, and what exactly is being transferred. Below are examples of some possible scenarios, but to better serve you feel free to call our office if you have any questions about the probate process in Texas.
● If the person who passed had an estate valued at $75,000 or less and did not have a valid Will at the time of death, then you may qualify for a small estate affidavit.
● Real property may also be included in the small estate affidavit, assuming it is listed and described as the homestead property of the decedent. Any other real estate owned by the person who passed can not be included in a small estate affidavit.
7. Making the required tax filings:
● It is typically the responsibility of the named heir or executor of the estate to make the appropriate tax filings. There are many possibilities of what may be involved in the process, but some can include the following:
○ Taxes on Gross Income
○ Social Security Benefits Taxes
○ Filing a tax return after someone has passed away
○ Possibly taxing IRA’s or other retirement investments if you choose to close the account
● There are special provisions that can apply if you are the spouse of the decedent and were filing jointly or have children that were being claimed as dependents. To better understand your situation and what may be applicable if you are in need of a probate attorney in Collin County, then contact our office for a free consultation.
Miscellaneous FAQs: Texas Probate and Estate Administration
What if the person who died had a will?
This is the most common and ideal scenario. Typically the person who passed away has left instructions to carry out their last wishes including who will inherit certain assets, property, and things like who will take care of minor children.
What does a personal representative do in the probate process? This is typically the individual, or in certain cases corporation, who oversees the administration of the decedent's will. This person has a fiduciary responsibility, meaning they must maintain a responsibility to carry out the wishes of the person who passed away as intended.
What issues could lead to litigation?
Many issues or disputes could end up leading to probate litigation, but some of the most common include:
● Allegations of undue influence (someone taking advantage of a position of power)
● Allegations of a person attempting to steal from the estate
● Disagreements on how a will is interpreted
● Disputes among beneficiaries and heirs
● Disputes regarding creditors’ claims
● Fiduciary claims against the personal representative or executor
While this can be stressful to think about, most people resolve their disputes out of court. Dean aims to ensure that any challenges his clients face are handled as quickly, reasonably, and cost-effectively as possible.
What is a Letter of Testamentary?
In short, this is a requirement to make sure the wrong person can’t gain control of bank accounts and finances. A Letter of Testamentary in Texas just lets the court know the right person is handling the accounts in accordance with the decedent’s will. This is actually required in your loved one's best interest, as it helps protect their assets from being controlled by someone they didn’t intend. The last thing anyone would want naturally is to work their whole life to build security for their loved ones, just for it to be compromised after their passing.
When will I get the assets named to me in the will?
One important note, is that creditors with valid claims must be paid before anyone named in a will gets anything. Only after any outstanding debts have been resolved can someone named in a will receive money or assets. In the case that specific assets were left out or had no instruction, court involvement may be required.
What if I don’t live in Collin County, Texas but Collin County is where my loved one lived?
If you don’t live in Texas, but your relative who passed away was a resident of Collin County, Texas, then there is no immediate need to stress about traveling. We have helped clients deal with probate in Collin County remotely for years. Keep in mind, certain clients feel the need to be present given the nature of the issue, and certain things may require you to be present in court. If you do not live in Texas but are facing the death of a loved one who was a resident here, call us to discuss the specifics of your case.
We hope this FAQ page provided some additional insights on this topic; however, we also understand every estate planning and probate matter is different. If you’re looking for an experience estate planning and probate attorney in McKinney, Texas, then call us today for a free initial consultation. We assist our clients in every step of the legal process. Our office provides free consultations as well as a flat fee schedule for most estate planning and probate matters.
For more information please request a copy of our Legal Services Schedule (PDF format).
If you recently have had a loved one passed away, then you may be wondering what steps come next. Depending on how the deceased person prepared their estate, you may have been informed that the estate must go through probate, and you may even have been advised by friends and family to hire a probate attorney. However, if you are unfamiliar with the probate process, you may be uncertain what probate is, what it entails, and whether or not you should consult an attorney. To help you make an informed decision as you and your family cope during this difficult time, here is an overview of everything that you need to know about the probate process and hiring a probate attorney.
What Is Probate?
So the first question that you likely have is "what exactly is probate?" Probate is a legal process that takes place after someone dies in order to make sure that property and possessions are given to the deceased's rightful heirs, and it ensures that any taxes or debts that the deceased person owed are paid in full by the estate. Each state has different laws dictating how a deceased person's assets are to be handled and distributed, and the probate process can then vary greatly from state to state. However, the probate process will generally involve paperwork and even court appearances, and court fees, lawyer's fees, and any debts owed are then paid by the estate before the estate's assets are distributed to beneficiaries.
Generally, if there is a will the estate's property will be distributed in accordance with the will once it has been authenticated by the court. It is the judge's job to ensure that the will is authentic, and if it is, that the directions in the will are carried out properly. If there is no will, it is the judge's job to ensure that assets are distributed in accordance with state laws.
When Is Probate Necessary?
Unfortunately, while probate can be a long, stressful, and potentially costly process for beneficiaries, probate is often necessary to ensure that an estate is handled and distributed properly even if there is a clear will in place, as probate court will still need to ensure that the will is valid and is adhered to. Of course, if proper estate planning steps were taken, this can help to streamline the probate process and reduce the financial burden that probate can place on the estate. For instance, if the deceased created a living trust, then any assets that were placed in the trust do not have to go through probate, as they are technically owned by the trust. Assets that are jointly owned, or are listed as POD (Payable on Death), can also bypass the probate process and go straight to the beneficiary.
What Is a Probate Attorney?
So what exactly is a probate attorney, and how do they differ from other lawyers? A probate attorney is a state-licensed lawyer who works with and advises executors and beneficiaries of an estate on how to settle the affairs of a deceased person. They will generally work with a beneficiary throughout the entire probate process to ensure that this process is handled properly and that the best interests of the beneficiary are looked after if the deceased individual's will is challenged.
If you decide to work with an attorney when handling the probate process after the death of a loved one, it is critical that you work with an experienced probate attorney. A probate attorney specializes in the creation, handling, and execution of estates, and they will have the knowledge and experience required to walk you through the complicated probate process and support you during this difficult time. Having handled many probate cases, they will know what needs to be done by what deadlines, ensuring that the probate process goes as smoothly as possible from start to finish.
What Does a Probate Attorney Do?
In addition to helping beneficiaries with the probate process, probate attorneys can also help individuals to plan their estate by preparing a will or a living trust before they die. If you find that you worked well with an attorney when handling the probate process after the death of a loved one, then you may want to consider also hiring them to help you plan your estate. As you may have already learned, the probate process can be stressful and expensive for the deceased individual's loved ones. By taking the time now to plan your estate and make plans for when you are gone, you can help to reduce the burden that can be placed on your loved ones after your death.
Do I Need to Hire a Probate Attorney?
Now that you know more about the probate process and what a probate attorney does, you may be wondering how you will know whether or not you need to hire a probate attorney. While it is often advisable to consult an attorney if the estate of a deceased loved one is facing probate, the fact is that some probate cases are more complicated than others. Depending on the unique circumstances surrounding your case, you may be able to navigate the probate process on your own. However, if you encounter certain problems as you start the probate process, then you will likely need to consult an attorney. It is advisable that you work with a probate attorney if:
The Deceased Didn't Have an Estate Plan
Hopefully, if the deceased did the proper estate planning then many of their assets may be able to avoid probate altogether, making the process simple. In this case, you likely will not need to hire a probate lawyer. For instance, if they had a living trust, the majority of their assets will likely be able to be passed on to beneficiaries without going through probate. However, if the deceased did not have an estate plan, then you will likely need to work with an attorney who can help you to handle the complex probate process. Even if the deceased had a will, an attorney can help you to interpret the will and make sure that it is adhered to.
Beneficiaries Aren't Getting Along
Perhaps the most important reason to contact an attorney is if there is conflict between heirs over the terms of the will and the distribution of the estate. Unfortunately, emotions can run high after the death of a loved one, and tensions may flair leading to disputes between beneficiaries who may think that they are not getting their fair share. If a family member is threatening to sue over the estate, you should consult an attorney as soon as possible. In all likelihood, an experienced attorney may be able to help mediate the situation and bring peace without a court battle. If not, they can help to represent you and look out for your interests in the event that there is a probate lawsuit.
There Is a Family Business Involved
When there is a clearly defined will or estate plan and all family members are getting along, it may be simple to navigate probate without an attorney if the deceased only had common assets like a house, cars, and a bank account. However, things get much more complicated when the estate includes a business or commercial property, and it is often necessary to consult an attorney in this scenario. If a business needs to be appraised, sold, or transferred, or if there is a debate over who will maintain control of a family business, then it is critical that you bring in an experienced estate attorney to help you navigate this complicated process.
The Probate Process Is Complicated in Your State
As we previously mentioned the probate process can vary widely from state to state, and depending on where you live it may be particularly critical that you consult a probate attorney. Some states have begun to adopt the Uniform Probate Code (UPC), which is a set of laws designed to streamline the probate process. In these states, probate is often conducted fairly simply with minimal court supervision. However, if you happen to live in a state that has not adopted the UPC or created its own simplified probate procedures, then probate may be a long complicated process for you, and it would be advisable that you work with a probate attorney.
The Estate Doesn't Have Enough Money to Pay Outstanding Debts
Ideally, after a loved one passes there will be enough money in their estate to pay for funeral costs, medical expenses, and their final debts while leaving some money for beneficiaries. However, if your initial investigation of your loved one's finances reveals that there may not be enough money left in the estate to pay for all of their remaining debts, then it is critical that you consult an attorney as soon as possible. While creditors may immediately start coming after you for money, it is critical that you do not pay any bills until you speak with an attorney, as state law will mandate in which order creditors get paid out from an insolvent estate.
Learn More About Hiring a Probate Attorney
If you have recently lost a loved one and their estate is set to go through probate, you may want to consider consulting an attorney. Probate is often a lengthy process that can be stressful to handle on your own, so partnering with an attorney will ensure that you have someone by your side to walk you through this difficult process. Feel free to contact us to learn more about the probate process as well as to find out if you should consider hiring a probate attorney.
For more information please request a copy of our Legal Services Schedule (PDF format).
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Probate is the process of managing debts and assets of an estate after someone has passed away. When someone dies (the legal term is decedent), estate law is enacted to ensure the orderly discharge of that person's final debts and transferring any remaining assets to his or her legal heirs. In the case of a will, probate follows the instructions in the will. However, probate for any property not covered in a will is managed by the court following the instructions in Texas statutes.
The probate process includes settling accounts that the decedent owed money on or was owed money by. The process also includes finding and collecting all properties that were owned by the decedent. Finally, the heirs of the deceased must be identified and located and the assets distributed according to the law and any legal instruments the decedent left behind for their transfer.
Wills and Probate Law
The probate process is significantly simplified when a legal will and other financial, health, and legal estate planning documents are in order before the decedent's passing. Even with proper estate planning, there is still a probate process as the probate court issues letters testamentary and ensures that the will is executed properly and appoints required guardianships of the person or the estate.
In other words, even if the deceased has all his or her estate planning documents in place, the courts will still play an instrumental part in enforcing the plan and dealing with any areas not covered in the estate planning.
Marshaling Property
Part of the probate process is marshaling the property of the decedent. Collecting the properties, persons, debts, liens, and other information for executing the estate is a major part of the probate process.
There are certain documents that will supersede a will and keep property out of the probate process. T.O.D and P.O.D. (Transfer or Pay on Death) clauses are often found in insurance policies, bank accounts, trusts, and other documents. Further, the Texas State Legislature has codified a Revocable Transfer on Death Deed as a significant instrument for transferring properties outside the probate process.
Settling Debtors and Creditors
Settling accounts is a key part of the probate process. During the collection of property, the executor will need to identify any people who owe the deceased money and make arrangements for payment of those debts to the estate. The executor will also identify any creditors who are owed money by the estate and pay them.
Distributing the Net Estate
After all the accounts are settled, the probate court and estate executors will distribute the leftover net estate. This includes selling real properties and dividing the assets among the heirs according to the will or according to the process determined by the court.
Special Situations When No Will Is Present
When no will is present, the probate court will assign an administrator of the estate through letters of administration. The process will include the same steps as executing a will including marshaling of property, settling debtors and creditors and distributing net assets. However, when there is no will present, the court will also determine heirship, those who have rights to the deceased's estate.
Smaller Estates
For smaller estates that do not have a will, heirs of the decedent can use an affidavit of heirship or a small estate affidavit to avoid the probate process. An affidavit of heirship is one possibility for managing an estate that was composed of real estate and had no debts besides those secured by real estate. A small estate affidavit is for estates with less than $75,000 in assets, and must be filed by an heir at least 30 days after the day of passing.
Affidavit of Heirship
An affidavit of heirship is not a formal part of a probate process. It is filed in the public records of the counties where there are properties that were owned by the deceased. The affidavit of heirship documents the family relationships of the deceased and is held on file to demonstrate who all the heirs of the decedent are.
Affidavits of heirship are not considered prima facie evidence of heirship until they have been on record for at least 5 years. They also do not have any determinative power over who the heirs are for the estate. Since the affidavit of heirship is not legally executed, many banks and title companies will not accept an affidavit of heirship as proof of the right to inherit.
An affidavit of heirship is not the best for all situations, but in simpler estate situations, it can be an effective method for managing an estate without a will.
Small Estate Affidavit
Designed for estates with less than $75,000 in assets, the small estate affidavit is approved in probate court in the county the deceased lived in at the time of death. Because it is approved by a probate court, the small estate affidavit is accepted by banks and other businesses for dealing with the heirs within the affidavit.
The small estate affidavit must be filed at least 30 days after the decedent's death and the person filing the affidavit must be an heir with entitlement to the estate. There also must be no other probate proceedings at court.
Unless the estate fits under one of the two items mentioned above, the probate process for estates without a will or where a substantial amount of property not covered by the will is as follows.
Determination of Heirship
Determining heirs is essential for executing an estate without a will through the probate court. This process seeks to address the known heirs as well as find unknown heirs. An intestate (no will) process is required by Texas state law to divide the assets and property according to blood and marriage relationships.
Unknown and known heirs will be made party to the probate suit and the probate court may appoint an attorney ad litem who represents the interests of unknown heirs.
In addition to unknown heirs, you need to determine whether the property is community property. If there are no children from previous partners, all property is considered community property and is transferred to the surviving spouse, unless there are assets that are proven to be separate property. Proving separate property is difficult to do unless the financial property is clearly separate from the other spouse, as in the case of inheritances and gifts, property that the spouse had from before the marriage, certain settlements, and finances attached to the separate properties.
Representation
Probate matters require a licensed attorney. Only a licensed attorney may represent someone applying for letters of administration, guardianship, and other estate-related issues. You may represent yourself in matters of estate law as long as you can demonstrate that you are only representing yourself.
An estate lawyer specializes in helping all parties navigate the emotionally difficult process of probate. While any licensed attorney may fill the paperwork out and represent the heirs in probate, an estate attorney will know how to understand Texas Estate Laws and have a better understanding of the costs of going through probate, for example, we offer flat rate fees for many probate cases.
Witnesses and Heirs
To demonstrate proof of heirship, probate court prefers to use the testimony of two disinterested witnesses, those who will not inherit anything from the estate. Often both heirs and witnesses will appear at court in person, but the Texas legislature has defined how to provide written deposition in the case that a party involved in probate cannot come to the court in person.
Written Deposition
The Texas Rules of Civil Procedure govern how written depositions are to be taken for representation within the probate court without being present. Key items to note on supplying written depositions to the probate court include the need to give your testimony in front of an authorized party where you are, the need for timely notifications regarding the testimony, and the testimony must be taken under oath.
Letters of Administration
When someone dies without a proper will, the probate court will appoint an executor of the estate through issuing letters of administration. This person is tasked with the responsibility of finding heirs, if necessary, and working through the collection of assets and distribution of them to creditors and then to heirs.
The administrator functions similar to an executor of a will but answers to the probate court in lieu of a will. If you have a proper will, then the probate court works to enact it as much as is possible. Without one, the court will enact the equitable distribution of the estate's assets to all legal heirs.
Learn More About Texas Probate
For more in-depth reading on estate law, The Texas Estate Code covers all laws regarding estates and the assets and persons left behind when someone dies. There are over 100 chapters in the Texas Estate Code.
If you are looking for more information on specific issues regarding setting up an estate plan, dealing with probate court, or other issues related to the death of a loved one, please contact our experienced probate lawyer today.
For more information please request a copy of our Legal Services Schedule (PDF format).
R. Dean Davenport, JD, PhD
Attorney R. Dean Davenport is an estate planning and estate probate lawyer in McKinney providing services to clients in the greater Dallas-Fort Worth metro area. R. Dean Davenport Attorney at Law advises and represents Texas clients on issues related to asset protection, estate probate, guardianship, and estate planning matters, helping to assure that estate assets are distributed according to their intentions after death, including the management and distribution of assets held in trust during their lifetime.
Mr. Davenport’s estate planning practice focuses on helping to minimize the risk of unexpected estate probate litigation and estate liabilities through the preparation of wills, trusts, healthcare directives, financial and medical power of attorneys, living wills, and guardianship arrangements for cognitively incapacitated or disabled family members and minor children. Mr. Davenport also represents clients in probate and guardianship proceedings in Texas. He has successfully litigated probate and guardianship matters in various Texas counties and his experience in these matters helps him identify many legal issues that require resolution prior to the court hearing, helping to minimize litigation costs.
R. Dean Davenport holds graduate degrees from Baylor University (MA, PhD) and Texas Tech University School of Law (JD). He graduated from law school in 2009 and was admitted to the State Bar of Texas the following year. Mr. Davenport entered the private practice of law in 2012 and continues to teach undergraduate university courses in the areas of ethics and business law. He is also a member of the American Bar Association, the Collin County Bar Association, the Texas Center for Legal Ethics, and The College of the State Bar of Texas.
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2150 S. Central Expressway, Suite 200
McKinney, Texas 75070
R DEAN DAVENPORT ATTORNEY AT LAW
The Summit Office Park
2150 S. Central Expressway, Suite 200
McKinney, Texas 75070
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Guardianship is a legal means to provide protection and care for an incapacitated person without having to obtain that person’s consent. Guardianships are usually necessary when a person lacks the capacity to make decisions due to an accident, healthcare issue, or developmental disability.