When a loved one passes away, the family often faces daunting challenges. In the first few days, the most important task is to make sure your loved one is laid to rest. In the following weeks or months, many families ask “What do I do with their items of personal and real property?”
If your loved one died with a will (testate), they’ve given you instructions on how they want their estate handled. In order to administer an estate, an application to probate the will should be filed timely in the county of death, meaning within four years of the loved one’s death. It can be done after four years, however, there are more requirements. The Probate Court will determine whether the will meets the legal requirements. If the will named a qualified Executor, the Court will appoint that person to manage the Estate. Once the assets are collected and debts are paid, the Executor will divide and distribute the Decedents remaining assets.
Intestate & Partial Intestacy
If your loved on died without a will (intestate), the probate process is more complicated. Since there is no will that dictates the Decedent’s wishes, the Court must first determine the heirs to the estate. An Application to Determine Heirship is filed with the Court by an interested party. This document asks the court to identify the heirs. You must provide contract information for two disinterested witnesses, meaning witnesses who will not get anything from the Estate. The Probate Judge will appoint an Attorney Ad Litem to represent the “Unknown Heirs or heirs with a legal disability.” This attorney will research your family history and speak with the witnesses. Then, the Attorney Ad Litem will issue a Report which lists the heirs and their respective shares of the estate according to the laws of Descent and Distribution which are detailed in the Texas Estates Code Chapter 201. These laws state that the surviving spouse and children are the first to receive the assets of the Decedent. If, however, no spouse or children exist, then the State looks to Decedent’s parents. If children exist from a previous marriage, the distribution will be altered. Texas recognizes the theory of community property, which, in general, is personal or real property acquired during the marriage. If the Decedent passed away during marriage, special rules apply to distribution community property. If your loved one passed away with a will which did not dispose all assets, or did not create a contingency plan which named alternate distributees of assets, then a determination of heirship may be necessary. The assets disposed of in the will would be distributed according to that document and the assets which are not distributed will be distributed to the Decedent’s heirs at law.
The Executor or Administrator must collect and appraise all assets, notify all creditors and beneficiaries, and inventory the Estate. If a lawsuit is filed against the estate, the Executor or Administrator must defend the suit. If taxes are due, the Executor or Administrator must retain a CPA to file a tax return for the estate. This firm does not give tax advice.
Unfortunately, disputes are not uncommon when administering an estate. Certain family members might have been “promised” an asset or forgiveness of a loan by the Decedent which contradicts or is inconsistent with the will or estate planning documents. If this happens, it may setback the estate administration process which can also lead to added expense of administering the estate. Litigation may be necessary to preserve the estate or prevent the depletion of assets. Distributees may challenge the mental capacity of the Decedent, or whether the estate plan reflects the Decedent’s wishes. A distribute may assert undue influence. If you believe that your loved one’s estate planning documents did not reflect their true wishes, litigation may be necessary.
North Texas Probate Lawyers
At the James H. Horton Law Firm, we currently serve clients from Denton, Dallas, Colin, Tarrant, Wise, and Cooke Counties from our law offices in Denton, Texas. Our North Texas Estate Planning & Probate Lawyers are very familiar with all local, state and federal court systems, and we are licensed to practice in courtrooms across Texas. Our attorneys have over 60 years combined experience representing clients in their legal matters, including estate planning. We also help estate administrators and trustees fulfill their duties and obligations.