The Daves Law Firm assists clients in all phases of probate and estate administration. As Texas probate attorneys, we guide our clients through the probate process in the most efficient and streamlined manner possible. We work with our clients through email, mail and telephone, so they never have to go to court or come to our office to get their probate done.
The Daves Law Firm serves clients throughout Austin and Central Texas, with a focus on communities in Travis, Williamson and Hays counties.
Our attorneys help clients with all aspects of probate and estate administration, including:
If you have questions or need assistance with probate and estate administration, contact the Daves Law Firm today
Probate is the process of wrapping of the affairs of a decedent. The Court determines the validity of the decedent’s Will (or, if there is no Will, determines the decedent’s rightful heirs-at-law) and an administrator or executor is appointed to collect estate assets, pay debts and claims of the estate, and then distribute the assets to the beneficiaries or heirs.
This depends largely on whether the decedent had any “probate assets.” Many assets such as homes, cars, household furnishings, and real property are considered probate assets—that is, assets subject to the probate processes.
Some assets, however, referred to as nonprobate assets, are not subject to the probate process and pass outside of probate through mechanisms such as beneficiary designations or rights of survivorship (e.g., 401(k)s, IRAs, life-insurance proceeds).
These are general rules; bear in mind that there are more nuances to these classifications. For example, a house can be a non-probate asset in some circumstances (e.g., the house is held in a living trust or was conveyed by a transfer on death deed). Likewise, assets that are traditionally ‘non-probate’ can be subject to probate (if, for example, the beneficiaries on a life insurance contract are all deceased).
Reason One (1): To protect ownership interests.
Generally, when a decedent dies, an ownership interest in decedent’s property vests immediately in those entitled to it under the will or the laws of intestate succession (if decedent died without a will). But a person's vested interest in a decedent's estate can be lost if action is not taken. For example, a will is not effective to prove title to or the right to possess any property it disposes of until it is admitted to probate. Thus, even if property left to a devisee under a will is already in the devisee's possession, the devisee could lose his interest in the property if the will is not timely admitted to probate; in this scenario, the property could pass to someone else under the laws of intestate succession or under an older will that is admitted to probate.
Reason Two (2): To clarify & document ownership.
When a decedent dies with probate assets, some type of probate procedure is generally necessary to clarify and document who owns the assets. Without documentation of ownership, a custodian in possession of an asset (e.g., a bank) is unlikely to turn it over to a person claiming to be a devisee or an heir for fear of being sued if the person is not who he claims to be or is otherwise not entitled to the asset.
And even if the person entitled to the asset under a will or intestate succession already has possession, some type of documentation may eventually be necessary if the person ever tries to sell or encumber the asset. Various probate procedures can provide this documentation. For example, if the decedent died with a will, a court order admitting the will to probate is necessary to validate the will so it is effective to pass title to the property it disposes of.
Once the will is admitted, certified copies of the will and the order admitting it to probate can be recorded in other counties to prove title to the property located there.
If the decedent died without a will, a person can apply for a judgment declaring who the decedent's qualified heirs are and the share of the estate each of them is entitled to.
When a decedent dies, his debts create a general statutory lien against all nonexempt property in his estate. Thus, the ownership interest in decedent's property that immediately vests with the estate's devisees and heirs remains subject to the debts of the estate. To pay these debts and discharge this lien, the estate's devisees and heirs can use a specific probate procedure. Probate law allows an estate with debts to go through an administration, which provides several benefits that are not typically available to most debtors.
First, an administration allows the person appointed to administer the estate—the personal representative—to contest the validity of a creditor's claim against a decedent, which a devisee or heir would not normally have standing to do.
Second, an administration can prematurely cut off the rights of most unsecured creditors by requiring them to present their claims shortly after the decedent's death—within 120 days after receiving notice from the personal representative—or else have their claims barred.
Third, the personal representative can ensure that the appropriate assets are being used to pay the decedent's debts. If a decedent dies intestate or dies with a will that does not address how debts should be paid, the Estates Code sets out the order in which estate property should be used to pay the decedent's debts. Thus, certain inheritances or devises may be protected from creditor claims if the debts must be satisfied out of other property first.
Reason Three (3): To collect, secure & distribute property.
When a decedent dies with probate assets, no one generally has legal authority to automatically access, possess, or distribute those assets. Even if a person was given a power of attorney over the decedent's property during her life, that power of attorney becomes null and void upon her death. This makes the collection of the decedent's property difficult because those in possession of the property are unlikely to give it to someone else without proof of authority (particularly if the custodian is a corporate entity, like a bank).
By opening an administration, the personal representative is issued letters testamentary or letters of administration from the court clerk that can be presented to those in possession of the decedent's property as proof of the personal representative's superior right to possess it. Once the property is collected, secured, and used to pay off any debts the decedent owed, the personal representative will distribute any remaining property to those entitled to it.
When a decedent dies with only nonprobate assets, the need for probate primarily depends on whether the decedent died with any debt. If a decedent with only nonprobate assets dies with some debt, probate procedures may be advisable because of the debtor protections that probate affords.
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