Frequently Asked Questions About Estate Planning and Probate

Probate is the process by which a Decedent's estate is openedl, property administered and debts resolved.

It isn't always necessary to probate a will.   The analysis is more complicated than this, but generally speaking, if a person dies with no debt, no real property and no bank accounts that require Letters Testamentary to collect, than probate might be avoided.

Step one is to determine if probate is necessary.  If it is, then you'll want to consider alternatives to probate, such as an Affidavit of Heirship or a Small Estates Affidavit.  If nether of these remedies is available to you, then an Intestate Administration may be necessary.  The steps of an Intestate Administration are discussed elsewhere on this website along with some practical tips to make the process as efficient, and cost-effective as possible.

The short answer is: it depends.   There is no such thing as routine probate.   This is the administration of a loved ones estate, and as such, it deserves attention, precision, experience and results.  An experienced probate attorney will know the next right step.  It is sometimes possible to complete the probate process from application to distribution in 3-4 months.  Complex estates require more time.

Clients should expect the process of probate to include several expenses, such as filing fees, service fees, and publication fees.  These are present in almost every case and can run around $500-$600 or more, depending on the county clerk's fees, the number of individuals requiring service and the legal notice fees of the local paper.  Clients are advised to seek out experienced probate counsel, as the seasoned attorney, as mentioned in a previous post, will know the next right step and won't waste valuable time and retainer looking for the correct approach.

Probating the will as a muniment of titile, only refers to an abbreviate probate process by which the will is admitted to probate solely to establish title to real and personal property.  The will, along with a copy of a Judge's order, can be filed into real property records evidencing transfer of property to, usually, a surviving spouse.  Not all wills qualify for this procedure.  According to Texas law,  in order to qualify for this abbreviate procedure, there must be a valid will, there must be no need for an estate administration, and the decedent must not have received Medicaid benefits after March 1, 2005.   Call me and we can discuss your specific situation.

There are many ways to avoid probate.  The simplest is to convert your assets to "non-probate" assets, meaning they would pass to others outside the will, usually with a Transfer-on-Death (TOD) or Payable-on-Death (POD) designation.  More complex estates shoudl consider a Revocable Living Trust to avoid probate.  

Everyone, regardless of wealth or status, should have the following basic estate planning documents:  a Last Will and Testament, a Living Will, a Medical Power of Attorney and a Financial Durable Power of Attorney.  

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Even the most basic will can save your loved ones much time, effort and expense should you pass unexpectedly.  The time and expense involved in creating a will is nothing compared to the time and expense of an intestate administration.  Just do it.

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