Do You Need To Probate An Estate?
Probate is an important legal procedure that derives from the Latin verb, “probare,” meaning to try, test, prove, or examine, meaning to “prove a Will.” A Will has no legal effect, until it is admitted to probate, or proved that it is the Will of the deceased.
A Will distributes the property of an individual when he passes. A Texas probate court determines if there is a valid Will or applies the state’s intestate succession laws if there is no Will. However, you can avoid much of the complexity of probate with either properly drafted Wills providing for independent administration or a revocable living trust.
The Probate Process
What happens in probate? The deceased cannot take his property to the grave, and, thankfully, his debts either. Simply, probate, or estate administration, is the winding down of the financial affairs of the deceased, by collecting assets, selling or distributing them, paying or settling debts, and distributing what is left over to the beneficiaries. Anyone with property should want to determine where those assets go and who gets the assets there. A Will or Trust does just that.
At James Law Firm, P.L.L.C., we also look for ways to avoid a full estate administration, such as small estate affidavits, affidavits of heirship, and probate as a muniment of title.
Why You May Want To Avoid Probate
If you have a straightforward estate, probate may not be that significant, but you will want a properly drafted Will. However, if you have substantial assets, hard to value assets, such as partnership interests or privately held corporate stock, or own a business or professional practice, designing an overall estate planning strategy to avoid probate can be useful and cost-effective.
There are genuine reasons to implement a revocable living trust to avoid probate such as:
- It can be expensive in certain situations
- It can be time consuming
- It creates a public record of the assets you own and the value of those assets, such as real estate and businesses (note that having no debts can dispense with the requirement to file an inventory document with a probate court, a public record)
- It is more likely for a person to challenge a Will successfully than a revocable living trust
- It can be burdensome and expensive to probate in multiple states, if you own real estate in multiple states
- High net worth individuals should use revocable trusts if they want to appoint trust companies to manage their affairs upon incapacity.
Probate And Estate Administration
Have you been named an executor of an estate in Texas or a trustee of a trust in Texas? As an executor, you have fiduciary duties to the estate and heirs. Estate administration must be done properly, and our lawyer can help advise you on your duties and responsibilities, and execute those duties and responsibilities.
We can also assist should probate litigation occur due to disappointed heirs or individuals contesting the validity of the will. Because of the high standard of care executors owe the estate, relying on the advice of our attorney can help prevent mistakes or errors that could lead to questions and ultimately to litigation.
Probate And Estate Fiduciary Services
Richard C. James also acts as a professional executor and trustee for certain clients and for others. If a client has no trusted family members or friends (or has some, but who are elderly themselves), a client has two choices for executors and trustees: a professional trustee (not a trust company) and a trust company. As a professional executor or trustee, I handle the administrative matters, while working with the client’s financial advisers who manage the client’s money and finances.
Probate May Be Necessary
In some cases, probate is necessary, such as and when an individual dies without a will (intestate) or when a guardian may need to be appointed. At James Law Firm, P.L.L.C., our lawyer can determine and locate heirs and administer estates without heirs. Again, it is important to emphasize that proper estate planning can ensure neither of these services are needed. Texas probate is not expensive as with other states, such as Florida and California, so probating a Will is not necessarily a bad undertaking.
Contact Us For Help With Probate
Probate can be complex, but we can help. Our attorney can advise you if you are an executor and can help answer questions if you have issues or concerns regarding the probate of an estate in Texas. Contact our office in The Woodlands at 832-764-7885 or use our online form.
TrustsA trust is a powerful device to manage and distribute your property, both during your lifetime and at your death. Trusts are difficult to describe in the abstract because they are so flexible. A trust can be set up to provide assets for a child with special needs, to obtain advantageous tax treatment of an estate or to segregate assets of a family business from other assets. They can be revocable or irrevocable, and you can create as many as necessary to carry out your intentions.
While they can be immensely useful for individuals and families with substantial assets and property holdings in Texas, they can also be used by those with more modest means to aid with asset and business management and control for your children and future generations.
A Lawyer Can Help You Determine The Type Of Trust You NeedThere are a wide variety of trusts and they can serve many purposes. James Law Firm, P.L.L.C., will examine your finances and family situation and help you create the trust or trusts that will help you achieve your goals.
We can create estate plans that use:
- Charitable trusts
- Living trusts (inter vivos trust), such as revocable living trusts to avoid probate in Texas and other states, to plan for incapacity, and to keep administration private.
- Spendthrift trust to help protect and provide for your family
- Self-settled trusts
- Special needs trusts to help beneficiaries with special needs so that they can continue on their disability or needs programs
- Testamentary trusts—in Wills
- Gift trusts for estates that will be subject to estate tax, such as Grantor Retained Annuity Trusts (GRAT) and Intentionally Defective Grantor Trusts (IDGT)
Because of the tremendous flexibility of a trust, you can set it up to meet your exact needs. This control means that if you have concerns with how a beneficiary may handle assets, you can protect the core assets of the trust, to prevent the risk of the wasting of these assets due to immaturity, addiction or mental illness. You can specify with precision how and when proceeds from the trust are to be distributed.
A trust also has the advantage of consistent management, as the trustee has a fiduciary duty to manage the assets according to the terms of the trust. This setup ensures proper management, even if you have been incapacitated by illness or accident.
Contact Us For Advice On A TrustA trust can be a powerful tool in your estate plan. Our attorney can help you set up and maintain the trusts you need. Contact our office in The Woodlands at 832-764-7885 or use our online form.