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.
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