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| | | - WHAT IS PROBATE?
- In short, Probate is the legal process that insures the legitimate and orderly transfer of property at a person's death. This involves the proving of someone's passing, a determination of whether a document is a valid will, or in its absence, who the lawful heirs are, and the updating of transferable title while protecting the rights of legitimate creditors. In Texas there are many types of Probate, but these can be sorted into a few basic categories. In simple cases where there is "no necessity of administration" Probate can be quick and inexpensive. In such cases where there is a will, a Muniment of Title may be available, and where there is no will being offered for Probate, a Small Estate Affidavit or Affidavit of Heirship should be considered. When there is a "necessity for administration" such as when there are debts that must be handled, or there is property which must be managed or sold, an Independent or Dependent Administration is usually utilized. These will be discussed in greater detail below.
| - WHY DO I NEED TO GO THROUGH PROBATE?
- One of the main reasons Probate is necessary is to update the title to property so that at some point down the road it may be sellable. Title, or written documentation of ownership, is often required with real estate, vehicles, investments, and bank accounts. In some instances this can occur without Probate by the mere presentation of a death certificate and/or Affidavit of Heirship. However, in most cases, property will require some form of Probate in order to verify and update who the rightful owners are. In Texas, the statute of limitations for most forms of Probate is four years.
| - SUMMARY FORMS OF PROBATE
- One of the quickest and cheapest forms of Probate is by Small Estate Affidavit. To qualify, the beneficiaries must be willing to abide by the state laws of succession where there is no will (either because there is no will or they are not going to offer any document as a will for Probate) the estate must be solvent, and the assets exceed the debts of the Probate estate by less than $50,000 exclusive of the homestead and other exempt property.
- When there is a valid will a Muniment of Title should be considered for its speed and low cost. To qualify for this type, there must be no outstanding debts in the decedent's name other than those secured by real estate (ie, a mortgage). This type of Probate still requires an attorney and court appearance, but can normally be completed in less than a month.
| - WHEN LETTERS ARE REQUESTED
- Often you will hear that you need "Letters," either Letters Testamentary or Letters of Administration (although this is not always true and therefore you should not fail to consider a Muniment of Title or Small Estate Affidavit).
- "Letters" are actually not as we think of it, but rather a certificate of authority issued by the courts to a personal representative of the estate. This will be required when there is a need for administration (refer to discussion above). Many reports will have to be filed with the Probate court, including an inventory, appraisement, and list of claims, proof of notice to creditors, as well as reports of any sales of property.
- In an Independent Administration, many of these requirements do not require advance court approval, court hearings, or other cumbersome and expensive forms of supervision and therefore can be significantly cheaper than a Dependent Administration. In the latter, virtually everything is supervised and controlled. This expensive and slow form of Probate can usually be avoided when a will expressly provides for an Independent Administration or when all the heirs consent to this form.
| - HOW DO YOU CHARGE FOR PROBATE?
- We at Silverblatt Law Office have never charged a percentage of the estate size as so often you hear as a criticism about the probate process. With Muniments of Title, Small Estate Affidavits, and Heirships of Affidavit, we generally can set a fixed price once we have all the facts and circumstances, so you know exactly what it is going to cost up front, regardless of the size of the estate.
- In cases where Letters will be issued (Independent and Dependent Administration) where it is impossible to kno0w in advance what claims and other issues may arise, we work on our standard hourly basis combined with a good faith estimate of what it will cost so you can plan accordingly. Again, it is never based on a percentage of the estate but is solely based on how much work is involved.
| - WHERE DO I BEGIN?
- First relax, and realize that the Probate process is usually a very straight forward and in many cases, quick and relatively inexpensive process. Next, gather together the decedent's will and any codicils or amendments to the will, and the death certificate. You can expedite the process by making a list of the decedent's major property holdings, including real estate, vehicles, investments, and bank accounts along with their approximate values. Also, make a list of the full names and addresses of all the people mentioned in the will.
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