The death of a loved one is never an easy time. One part of the stress of losing a loved one is the bevy of financial and tax questions that arise. With the help of a qualified probate attorney, you can work through the probate administration process. We have performed scores of probates in the greater Austin area, many of these probates involving estate planning documents that we drafted ourselves. Our lead attorney, Joe Fulwiler, is board certified in Estate Planning and Probate law.
If you are interested in our services, use our contact form to the right or call to schedule a consultation and begin Our Process, but if you don’t know where to start, try our Frequently Asked Questions
1. After we hear from you, we’ll set up a consultation, where we can go over the basic facts of your situation and determine how best to proceed. In our initial meeting, we will discuss things like the total value of the estate and if a will exists. It is not essential that you bring anything to the first meeting, but if you have them handy please bring the Will (if any), a rough list of assets and debts of the decedent, and any other estate planning documents such as trusts, marital property agreements, etc.
2. Once our services are retained, we begin drafting the key probate documents, i.e. Application, Proof, Order, Oath, and Waiver of Service (if necessary). After your review, we file these with in your county.
3. You appear with us at a hearing at your county courthouse. We’ll take care of setting it to fit your schedule. It’s here that you sign the Oath, which makes you executor (or administrator, if there was no Will). At this point you are able to receive Letters Testamentary, which allow you to do anything the decedent would have been able to do.
4. Next, we publish a Notice to Unsecured Creditors in a local newspaper, and we send letters to anyone named in the will, letting them know that they are a beneficiary.
5. Afterwards we draft the Inventory, Appraisement, & List of Claims. This is one of the most important documents in the probate case. It informs the beneficiaries and creditors of the assets in the estate, and it determines the value of the items in the estate for purposes of determining the new tax basis in the hands of the beneficiaries.
6. The final step is administration of the estate. Most of our clients choose to do this on their own, to reduce fees. This is the process of gathering the assets, paying any just debts, and distributing the estate to the beneficiaries. The executor or administrator is also required to file any requisite tax returns.
Probate Frequently Asked Questions
“My Parent or spouse left a will that names me as executor. This is all I need to put of his or her affairs in order, right?”
Not quite, but this is a good place to start. While a will outlines the wishes of its testator with respect to his or her possessions, a few more steps are needed. It must first be determined that your parent or spouse is in fact dead and that there is no Will written after the current one. Our Process for probate will cover all of the necessary steps for the issuance of Letters Testamentary.
“What is Probate?”
Simply put, probate (from the Latin for “to test” or “to prove”) is the process of having a Court review or “prove up” a Will, determine its validity, and appoint someone to transfer the decedent’s property to the proper beneficiaries or heirs. Most probates are routine and unopposed.
The purpose of probate is to allow you to transfer real estate or financial accounts to the next generation.
“What’s a decedent?”
Decedent is legalese for the person who is deceased.
“What if my decedent didn’t leave a will”
It’s not the end of the world. There will be a few extra steps, and a bit more in terms of fees. This extra cost comes from both the court and from us, as the filing fees are higher and there is substantially more work involved.
In addition to the above, the terminology changes slightly. Instead of the probate of a Will, there is a determination of heirship, and the position of “executor” becomes “administrator.”
Finally, there is no choice in the distribution. Each child of the decedent, in addition to the spouse, is entitled to a certain portion of the estate, with the portion depending on a number of factors. If all of the heirs are in agreement and if action is taken quickly enough, we can sometimes use disclaimers or a family settlement agreement to vary the distribution from the statutory scheme.
“My parent or spouse just left a handwritten Will. Can we probate this?”
If the entire document is in the handwriting of the decedent, and if the document clearly evidences “testamentary intent,” i.e. a desire to dispose of assets at the end of life, then we may be able to probate it.
If the handwritten, or holographic, Will fails in one or more requirements, we can still perform a determination of heirship as if there was no Will.
As with all legal issues, there are a number of factors that can complicate your probate or heirship, so contact us to set up a consultation.
If you are in the market for an Austin probate lawyer, we hope you choose us.