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Wills and Probate
Death is not only a personal issue; it
is also a legal concern. A death certificate must be issued, your
property must be legally passed to others, and any taxes must be paid.
A Will serves as a legal tool and your voice to provide instructions
on the transfer of your assets, to identify your heirs, and to specify
the property that they should receive. Wills may also appoint a
guardian to take care of minor children in tragic cases where neither
parent survives. By planning through a will, you provide guidance on
your final wishes and help to ease the burden of grief and confusion
of your loved ones.
After your death,
your Will moves into probate. The goal of probate is to legally prove
the validity of your Will, to distribute assets according to your
instructions, and to make your Will public. All debts, taxes and fees
are paid and the legal title to your property is formally passed to
heirs through this process. Probate is designed to protect heirs and
beneficiaries by giving them clear title to your assets, and avoiding
any fraud or theft against your estate. Probate in Texas is not
mandatory, and the majority of probate cases are handled through
Independent Administration, which can usually be completed in less
than three months with a properly drafted Will. In addition to
Independent Administration, probate may be carried out through other
legal means:
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Dependent
Administration is the most complex process and occurs when a
person dies without a will (intestate). All actions must be
supervised by the court.
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Muniment of
Title is a very quick and efficient form of probate. It can be
used when there is a properly drafted will and there are no debts to
be paid (excluding a home mortgage). No executor is required since a
court Order validates the Will and transfers the ownership of assets
to the heirs named in the Will.
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Small Estate
Affidavit is filed in situations where the deceased died intestate
(without a Will) and the estate is valued at under $50,000
(excluding a homestead). No executor is appointed.
In addition to
probate, many people are concerned about “death taxes” that may be
owed when they die. The oldest and most common form of the death tax
is the estate tax. These taxes are imposed upon the estate prior to
the distribution of the decedent’s property to the heirs. The federal
government imposes an estate tax on estates that exceed $1.5 million.
Payment of taxes mush be made within nine months of the date of death
and can range from 37% up to 55% based on the value of the estate.
Congress has been very active in this area and the rules governing
estate taxes are scheduled to change every year for the next several
years. With careful planning, you can keep your estate’s tax liability
to a minimum. Heirs who need help dealing with the complicated tax
laws, or who wish to disclaim (refuse) their inheritance for tax
reasons or other issues, will also benefit from sound legal
counseling.
Texas, too, imposes
its own tax on large estates that are subject to the federal estate
tax. In Texas, a taxable estate can include real property (including
oil, gas and mineral property within the state), tangible personal
property such as jewelry, art, antiques and other valuables, and
intangible property such as stocks, bonds, IRA, and CDs.
Wills help to avoid
legal problems, assure that your estate passes as you wish, and
minimize probate-related costs (in cases of large estates) and taxes.
Executing a Will can be much less costly in terms of investment of
time and money than most people think. Consider consulting an attorney
to draft your Will. Frequently, handwritten Wills, or Wills derived
from computer software programs may not contain provisions for taxes,
state-specific laws, or in some situations, the estate is too complex
for the software program. In addition to ensuring that your Will is
comprehensive and properly drafted, an attorney can advise you on the
advantages of Durable Power of Attorney, Trusts and other estate
planning tools.
For more information about Probate in
Texas, please see:
Our
Probate page
Probate FAQs
Articles: Independent
Executor
Estate Planning & Probate Links
Estate Planning Glossary |
