Probate, Estate Planning, & Guardianship Attorneys
Billings Law provides you with superior legal representation
Our office is here to help you through all phases of life. We make sure you have the information you need to make decisions about providing for your family if you become unable to care for yourself or in case of your death. In the same vein, we can help you determine the right plan for your family if you have a child with special needs.
Probate in Texas refers to the legal process of handling someone’s estate once they have passed away. If you have a valid Will, your family will probate it at your death in order to have an executor appointed and allow the executor to distribute your estate in accordance with the Will. If someone passes away without a Will, they are called intestate. Several options exist to handle an intestate estate, and the most common is to request that a court make a legal determination of the heirs (called an “heirship”) and then appoint an administrator to distribute the assets of the estate to the heirs. We will discuss the details of the estate with you, including any assets and any potential creditors, and make a decision together about how best to handle a given situation.
Estate Planning is a broad category that includes the creation of Wills, trusts, and other ancillary documents that fit within your plan for your estate. The goal of the documents is to avoid unnecessary legal action in the future and give your family a clear roadmap of your wishes and how various situations will be handled. For example, having a properly executed financial power of attorney and a properly executed medical power of attorney may prevent the need for a legal guardianship for you if you are injured in a car accident and no longer able to take care of yourself or handle your own finances. As another example, having a testamentary trust inside your Will makes it possible for minor grandchildren to inherit without the need for court approval or can provide for a grandchild with special needs to inherit without interfering with needs-based government benefits.
Independent Administration of Estates
Regardless of whether you die with a Will or not, Texas probate allows for the “independent administration of estates.” Using this process, most Texas executors, including those in Humble, Huffman, Spring, Porter, Conroe, and the Woodlands, wrap up estates with minimal court supervision. Furthermore, in some cases, assets can be transferred to the new owner without the need for probate. Those assets include: (i) community property with the right of survivorship; (ii) property held as joint tenancy with the right of survivorship; (iii) payable-on-death bank accounts; and (iv) survivor’s benefit from an annuity.
The majority of Wills in Texas direct the named executor to pursue independent administration, because it is quicker, easier and less costly than “dependent administration”. Even if a Will does not provide for independent administration, the executor or administrator can ask the court for the authority to act as the independent administrator if all of the beneficiaries consent. Independent administrations usually involve only one court hearing and the filing of an inventory. They account for more than 80% of Texas probates.
Independent administration means the executor: (i) does not have to post a bond; and (ii) does not have to request the court’s permission before taking many steps to settle the estate (including setting aside a family allowance, paying debts, selling estate property and distributing assets to the people entitled to inherit them). An independent administrator must still publish notice to potential creditors and file an inventory of assets with the court. The executor must collect and protect estate assets until the time comes to transfer them to their new owners. The executor is entitled to a fee (commission) of 5% of all the money the estate receives and all money it pays out. The only transactions counted in determining the commission are transactions having to do with managing the estate.
Dependent Administration of Estates
Regardless of whether you die with a Will or not, Texas law also provides for the dependent administration of an estate. The dependent administration of an estate requires significantly more court supervision and is more expensive and time-consuming. With a dependent administration, a court oversees every aspect of an estate’s administration. This requires an administrator to post bond, hire an appraiser, submit an annual inventory, petition the court for permission to sell property or distribute assets and file a final report with the court.
Dependent administration of estates occurs most frequently in situations where there is a high level of distrust among heirs.
Muniment of Title
Muniment of title is the probate of a Will without the appointment of an executor or administrator and is used only for proof of title to property. When a will exists, the “muniment of title” process is a relatively simple and inexpensive way to transfer assets. It can be used when: (i) there is a will; (ii) there are no unpaid debts, except those secured by real estate; and (iii) Medicaid has no claim against the estate for recovery of benefits received by the deceased party. To initiate the process, an individual files the Will and a request to probate the Will as a muniment of title, with the probate court. If the court determines that there is no need for probate administration, it admits the Will into probate as muniment (or evidence) of title to the estate assets. The Will then serves as the document that transfers the assets to the parties named in the Will to inherit them.
In situations involving muniment of title, the court does not appoint an executor or administrator. The person who requested probate as muniment of title must simply file an affidavit with the court within six months, stating that the terms of the Will have been carried out (or, if some of the terms have not been carried out, the person must inform the court of such terms).
Small Estate Affidavits
When a Will exists, heirs can take advantage of Small Estate Affidavits (SEAs) in certain limited circumstances. The requirements include: (i) the decedent died without a will; (ii) the decedent left less than $75,000 in property (not including homestead property and exempt property); (iii) the assets are worth more than the debts; (iv) the only real property owned by the decedent was the decedent’s homestead and the real property will be inherited only by the people living with the decedent at the time of death (i.e., surviving spouse and/or minor children); (v) all of the heirs are able to be located and all of the heirs sign the SEA; (vi) there is no pending application for appointment of a personal representative and no personal representative has been appointed by the court; and (vii) there is no administration needed.
An heirship proceeding is a court proceeding used to determine who are an individual’s heirs. Heirship proceedings occur whether or not a Will is present but when there is no Will, the process of determining heirs is a much lengthier one. When an individual dies intestate, the Texas Code provides that the individual’s heirs shall inherit the estate. Although identifying an individual’s heirs is a fairly straightforward process, the court does not make any assumptions regarding the identities of the heirs and, as such, requires an heirship proceeding to be conducted. This process involves a court-appointed attorney to investigate the deceased individual’s family history and confirm to the court the identity of the heirs.
Guardianship issues relate both to minor children as well as to adults who are incapacitated. Until a child is 18 years old, he/she cannot inherit property in his/her own name. In situations where a person dies and leaves money to a child directly, or names that child the beneficiary of his life insurance policy or a retirement account, a court will need to appoint a property guardian to manage that child’s money until he she turns 18. Serving as a property guardian is similar to acting as a trustee, because it is the job of the guardian to carefully manage money for the benefit of the minor. However, unlike a trustee, the job of the guardian necessarily terminates once the child turns 18 because that is when the court’s jurisdiction over the child ends. Additionally, unlike a trustee, a guardian must file formal accountings with the court, showing how the money was invested and distributed.
Guardianship for incapacitated adults ( I.e., the “ward”) can be tailored to provide only the specific assistance needed while preserving as much independence as possible. Guardianship proceedings consider: (1) the extent of the ward’s capacity; (2) the necessity of the guardianship; and (3) the most appropriate person to be appointed guardian using the “best interest of the ward” standard.