Probate is a term that refers to the process of a court determining the validity of a will, usually appointing a person to administer the estate according to that will, and often overseeing that administration. Many of the details of this process are set out in my website here. Following are some questions I often hear from clients or others I speak with about probate.
My loved one had a will, so we don’t need probate, right? You might not need probate, but if not it wouldn’t be because your loved one made a will. Most often if someone makes a will it indicates that they anticipate a need for probate. Whether an estate must be probated depends on whether it consists of property that cannot be transferred to the intended beneficiary or heir without the probate process. Preparing a will is the best way to ensure the probate process will be handled as efficiently as possible.
I’m the executor under my loved one’s will. Why won’t the bank let me transfer my loved one’s account to the beneficiaries? An executor designated in a will does not have power to act as executor until a court appoints them executor, the executor takes an oath of office, and a bond, if required, is submitted by the executor. At that point the clerk can issue letters testamentary that evidence the executor’s power to act for the estate.
My uncle in California told me probate is extremely expensive and takes a very long time. He suggested I get a living trust prepared. Is that correct? Whether to use a living trust depends on many factors, including how willing you are to keep it up to date during your lifetime. Your uncle may be correct about probate in California, but the probate process in Texas is relatively simple and quick if your will is prepared properly. Texas has a probate process in which the executor operates mostly independent of court supervision after appointment by the court and some initial filings to ensure notice to the beneficiaries.
How do I prepare my will properly then? The best thing to do is consult with an attorney who concentrates his or her practice in the area of estate planning. They will evaluate your situation and tell you what alternatives you have. If a will is appropriate for you, they can prepare one that appoints an executor, allows the executor to act independently and without bond, and does so with minimal witnesses to testify at the probate hearing. An independent executor is not appropriate in every instance, but the attorney can advise you on that, also.
But my uncle also told me that probate requires my family to publish a list of everything I own for the world to see. Is that true? The executor of your estate has a choice in how to handle the requirement that an inventory must be filed. First, the inventory only includes assets in your probate estate. So assets that pass to a beneficiary automatically at death won’t need to go through probate and wouldn’t be included in the inventory. Those assets typically include life insurance, IRAs and joint accounts with rights of survivorship. Other assets will most likely be in your probate estate and thus, must be included in the inventory. Your executor can file in the public record either that inventory or an affidavit in lieu of the inventory. In order to file the affidavit, two requirements exist: (1) all debts of your estate other than secured debts, taxes and administration expenses must be paid, and (2) a verified, full and detailed inventory must be provided to all beneficiaries. If an affidavit is filed in lieu of the inventory, the public will not have access to the inventory.
If you have other questions about probate, call my office for an appointment to meet with me.