Areas of Practice - Probate Law

Table of Contents
Frequently Asked Questions
Skip to Frequently Asked Questions


Probate Law Information
Table of Contents


My loved one just died. What should I do?

What's the first thing I should do?
The first thing to focus on of course is the funeral. It must be planned and paid for, or at least a plan needs to be made for payment. You should look through all the available records to see if there was a prepaid funeral contract. This may be kept with or near a will or estate planning file. The deceased may even have left instructions about what kind of funeral or other service he or she might want. You should look for this information. Texas law gives a priority to claims for funerals, so if you or someone else has to pay for the funeral, you should keep receipts of your expenditures and plan on presenting a claim to be reimbursed.

TOP OF PAGE

Whom should I contact? Should I contact his/her employer?
You should tell the employer and find out if there are any death benefits connected with his or her employment. Talk to the human services or personnel department if there is one. You should also notify Social Security Administration if he or she was receiving Social Security. You can find the local number in your phone book.

TOP OF PAGE

Do I have to find the will right away?
You should look for the deceased's will, which probably says "Last Will and Testament" at the top. If it is not easily found, consider telephoning the office of the deceased’s attorney, if he or she had one. Make sure to look in the safety deposit box if you have access to it and cannot find the will anyplace else. There's plenty of time to probate the will (see below), so your search for the will does not need to be rushed or panicked, but it is a good idea to locate and secure the will when the opportunity is available. If you can't find the original will but think the deceased had one, contact your attorney for advice.

TOP OF PAGE

What should I do with the will when I find it?
When you find the will, you should consider making an appointment with an attorney who is qualified and experienced in probate law. Even with a well-drafted will there are options that an experienced lawyer can help you sort through. You may want to use the attorney who drafted the will, if it is current and the attorney is available. You are not required to use the attorney who drafted the will. You may want to use your own attorney or ask your attorney for a reference. If you do not have an attorney, ask friends or other professionals, like financial planners, CPAs, etc., for a referral.

TOP OF PAGE

Do I have to probate the will?
Whether or not you need to probate depends on the nature of the assets and how they are titled (in whose name are they held). Your attorney can help answer this question. There may be shortcut methods to avoid a complete administration if appropriate in your case.

TOP OF PAGE

How long do I have to probate the will?
In general, the will must be submitted for probate within four years of the date of death. If more than four years have elapsed since the date of death, it may still be possible to probate the will, but a more complicated procedure is required. Ask your attorney for more information about this. Sometimes people think that because they have access to all the bank accounts, it is not necessary to probate the will. This can cause serious problems. For example, problems may arise later, when the family decides to sell real estate owned by the decedent. If you think it is not necessary in your case to probate the will, you should be sure to discuss this with an attorney before allowing the four-year period for probate to lapse.

TOP OF PAGE

What documents will the attorney want to see?
The attorney will need to have the original will, and a certified copy of the death certificate. If you are anxious to begin the probate process and the death certificate is not yet available, you can start the probate process without the death certificate and file it later. The attorney eventually will need a list of all assets belonging to the deceased, valued as of the date of death. This will include bank accounts with the balance as of the date of death and investments and IRA’s and insurance, no matter who it may be payable to. It will include all real estate owned by the decedent, whether alone or jointly with another person. The attorney will need these to determine if the estate is subject to estate tax. If the deceased owns assets, including insurance, retirement benefits and the homestead that are valued in total more than the statutory exemption, then the estate may be subject to estate tax. Even if the estate is less than this amount, the attorney will still need a list of assets and their date of death value in order to prepare an inventory of the estate. The inventory is filed with the probate court after the will is probated. The inventory is important to the beneficiaries because it can determine their tax basis in the assets they receive.

TOP OF PAGE

Do I still have access to joint accounts even before I probate the Will?
In most cases, the bank or brokerage firm will allow a co-signer on accounts to access funds after the death of one of the co-signers. However, not all accounts with two co-signers automatically belong to the surviving co-signer. Who owns the property in these types of accounts is a complicated subject. Also, if the estate is large, there may be serious tax problems that need to be addressed before the funds are accessed. Therefore, it is a good idea to consult an attorney before using funds from these accounts for personal purposes, and it is a good idea to keep good records of how these funds are spent.

TOP OF PAGE

I know that my loved one did not have a will. What do I do to settle his/her estate?
What needs to be done will depend on the nature of the assets. Sometimes a full court procedure, called a "Determination of Heirship," is necessary. In other cases, a less complicated approach, such as an affidavit of heirship or small estate affidavit, can be used. The difference and complexity of each of these processes can be explained by your attorney.

TOP OF PAGE

How long does it take to settle an estate? It can take as little as two weeks to have a will admitted to probate. After that it is a matter of collecting the assets, paying the debts and distributing the remainder to the beneficiaries named in the will. A final tax return will need to be filed when due and any taxes paid. Generally, if no estate taxes are due, most of what needs to be done can be completed within about 3 to 6 months, depending once again on the complexity of the assets. This does not mean that no one may have access to any funds until all is completed.

TOP OF PAGE

Creditors are calling me regarding my loved one's accounts. What do I tell them?
Tell them your loved one is dead and that they will need to wait until an administrator or executor is appointed. Do not agree to anything or sign anything with the creditor until you have discussed it with an attorney. Many credit card companies attempt have the surviving spouse agree to take over the card (making it sound like they are doing the spouse a favor), and this often is a bad idea. Texas law provides protection and benefits for surviving spouses and children. You should discuss these with your attorney.

TOP OF PAGE

My loved one told me he/she had a life insurance policy of which I am the beneficiary. How do I go about collecting the life insurance proceeds?
You should locate the policy, determine that you are the named beneficiary and then call the insurance company and request a claim form. The company will help you if you have questions about how to fill it out, or you can ask your attorney. If you cannot locate a policy, check the bank statements to see if premiums are being automatically withdrawn or checks have been written to an insurance company. If you know one exists but still cannot find the policy call the insurance company and explain the situation to them. If they still are not helpful, discuss it with your attorney. Before cashing in the policy, be sure to discuss it with your attorney. In some cases another course of action makes sense. For example, it may make sense for tax or creditor protection reasons to disclaim the insurance proceeds. In most cases, a disclaimer can't be used if the policy already is cashed in. So, it is a good idea to discuss the insurance with your attorney before cashing it in.

TOP OF PAGE

 


   Home | Attorneys & Mediators | Contact Us | Offices | Testimonials | Areas of Practice | Resources | Documents