Q:

How Long Does Probate Take?

A:

Probate is the process by which a court enters a will into the court record or determines who will inherit property if no will exists. Probate will require at least one court appearance before a judge by an estate representative. Notice periods, or time to contact any person who may be involved in the distribution of an estate, are required, including creditors and beneficiaries. In Texas an administrator is required to provide notice of the administration to known creditors. The creditors have four months to file their claims with the administrator or court after notice in a dependent administration. The time needed to probate an estate will vary; usually requiring an average of six months to a year. If there are no debts owed, property is frequently distributed much sooner. Frequently all property passes to the surviving spouse and the will is admitted to establish title only, with no formal administration of the estate.

The regulations governing fees and probate judgments vary from state to state and are complex. In Texas the filing fee for beginning the process is less than $300.00 in most instances. The attorney fees can vary widely depending on the service provided and who is hired. The attorney should be willing to provide a written agreement setting forth how the fee will be computed. For more information about wills and estates consult a licensed attorney.

Q:

Do I need to probate Mom’s Will?

A:

The most common question I hear from clients is "do I need to probate Mom’s (Dad’s) will?" Until I obtain more information, I can only answer “maybe” or “I don’t know”. Texas provides many possible solutions to transfer of title to property after death.

The answers to the following questions should help you understand what information an attorney may need to advise you and what an attorney may say to you.

Q:

Why would I want to Probate a Will to obtain Letters of Administration or Letters Testamentary?

A:

These letters are granted to the person who qualifies at a Probate Court hearing to collect the property and manage the property of the Decedent (person who died leaving property). Common uses of administration are to:

  • set aside assets for the spouse and children to use instead of paying creditors,
  • appoint a person to deal with the tax authorities,
  • centralize administration,
  • to obtain reimbursement for the costs of funeral, expenses of last illness, and/or of administration for the applicant from the other family members out of the estate property,
  • sell property more efficiently.

Quite often a bank or insurance company will tell you that it will only give information or property to a person with Letters Testamentary. A Letter Testamentary is the document a Court gives the executor to show the world that he is empowered to act as executor.

Q:

What is Muniment of Title?

A:

If there are no debts to pay or any other need to empower the executor to gather assets or represent the estate one option is to present the Will to the Court to approve as valid. Upon acceptance by the Court the Will is entered into the Probate Records of the County. Certified copies of the Will and Order are sufficient to pass title to probate property. This process is called Probate of Will for Muniment of Title. Out of state banks, insurance companies and brokerages sometimes do not understand this procedure and can be difficult to work with in this type of situation. Normally a short letter and a copy of the Estates Code Section on point is enough to persuade the attorney for the Bank to deliver the property to the named beneficiaries.

Q:

What is a Small Estate Affidavit?

A:

A small estate affidavit is an affidavit signed by each heir and two witnesses not in the direct line of descent. The affidavit may pass title to probate property of up to $100,000.00 in value, not including the value of the homestead in the value limitation. Do not confuse this document with an heirship affidavit. The small estate affidavit is filed with a Probate Court and the Court enters an Order Approving the Affidavit.

Q:

Who or What is an Heir?

A:

“Heir” and “heirship” are legally defined words. The meaning of heir is those persons who take under the laws of descent and distribution. There are several statutes in Texas concerning heirship. Unless the decedent is survived by a spouse and only children of the decedent and the surviving spouse it gets complicated. If only the spouse and children of that marriage survive the spouse keeps her one-half of the estate and the children inherit the rest of the community property. If there is also separate property, a different statuate controls. The spouse receives a one-third interest in the real estate for life and the children of the spouse who died share the remaining portion equally. This is a simple explanation of the statute which deals with even more complex situations. As to the separate property the wife or husband receives a one-third life estate in the land and a one-third interest in the personal property; the children split the rest equally.

One common effect of passing property by heirship is that your attorney gets to make much more money than if the person had a properly drafted will.

Q:

What is an Affidavit of Heirship?

A:

This form of affidavit is commonly used to pass title to land at closing on the sale. An Affadavit of Heirship is normally drawn up by the attorney for the title company.

Q:

What is Probate Property?

A:

The best answer is that all property is probate property except that property which passes by contract or survivorship. There are four types of contract that frequently pass title to property: life insurance, bank accounts, brokerage accounts and pension, IRA or 401(k) contracts.

Q:

What is Survivorship Property?

A:

The Texas Estates Code defines “survivorship” and how to pass property by survivorship. Basically, it is property that passes by contract to the “survivor” of the named parties to an account (IRA, bank, brokerage, life insurance, etc.). A common survivorship property is a bank account that contractually passes by survivorship. DO NOT ASSUME A JOINT ACCOUNT IS SURVIVORSHIP PROPERTY. It must have the legally required survivorship language in the contract and be clearly accepted by the owners of the account. Many banks have survivorship agreements that do not meet the requirements of the statute. Some forms of survivorship property are more common in “common law” states than in “community property” states like Texas.

What happens if the estate has more than $100,000.00 in probate assets, not including the homestead, or has more than one creditor and there is no properly drafted will?

Someone will need to apply to the Court to determine the heirs and possibly for an administration. The Court will appoint an independent attorney (called Attorney Ad Litem) to represent any minor heirs and the unknown heirs. The current fee of $400.00 for the attorney ad litem must be paid at the time the application is filed in addition to the filing fee. At the hearing the applicant will need to present two witnesses as to the family history of the decedent who can on personal knowledge testify as to who are the children and surviving spouse, if any, of the Decedent. Testimony about the existing property in the estate must also be provided to the Court. This hearing can be and often is combined with the hearing regarding the need for an administration and appointment of the administrator.

Q:

Do I have to hire an attorney?

A:

Most Probate Courts will not permit an individual who is not licensed as an attorney to represent anyone else. If the proceeding is an heirship proceeding or if there is any beneficiary named in the Will to receive property other than the applicant the Court will normally find the applicant is attempting to practice law without a license. You have a right to represent yourself, but no one else. If the surviving spouse takes all if she survives, then she can be the applicant even if her children would receive property under the Will if she had not survived their father.

Q:

How much will it cost?

A:

Cost of the attorney fees will vary regarding the situation and who you hire. Unless there is a dispute among the family members I can normally quote a set fee for all services (called a flat fee). The table below sets forth my common charges, which may vary based on the complexity of the issues involved.

All attorney fees are in addition to major expenses, such as the court filing fees. There is a mandatory $400.00 fee to pay the attorney appointed to represent any unknown heirs or minor children in heirship proceedings. Any and all of the court fees are subject to change, as are my fees.

  • Probate of Will, Independent Administration $1750.00 (The number of creditors may increase my fee)
  • Determination of Heirship $2,500.00 Costs will include attorney fee for unknown or minor heirs and court filing fees
  • Determination of Heirship w/ Administration by agreement of all parties $3,500.00 minimum
  • Dependent Administration $2,500.00 minimum (this is an estimate of my fee based on hourly rate of $225.00)

Let an experienced Probate attorney help you with all of your life planning legal needs. Mr. Kennedy serves clients in Dallas, Fort Worth, Arlington, Mansfield, Grand Prairie, and all surrounding areas in Tarrant and Dallas Counties.

*The Information provided in this website by Arlington elder care attorney Charles Kennedy is meant to be general in nature, not as advice for the exact circumstances you may face.