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Frequently Asked Questions
What Happens When I Die?
Which of my assets are transferred without having to go through the probate process?
Certain types of property may pass outside the provisions of your will because of the contracts or agreements that have been signed by you. For example, life insurance, retirement plans, individual retirement accounts, and annuities all pass outside the probate process, i.e. the contract or agreement that designates a beneficiary is what controls to whom the asset is transferred. These investments will pass to the beneficiaries you have named in the paperwork you completed regardless of whether you have a will. However, if you failed to name a beneficiary or the beneficiaries are all deceased, or if the beneficiary you named is your "estate," then those investments will be paid to your estate and pass according to the terms of your will.
Payable on death accounts (sometimes called "POD" accounts), and other types of bank accounts, will be also pass outside of probate and be distributed to the named beneficiary. Accounts set up by one or more persons as joint tenants with rights of survivorship (sometimes called "JTWROS" accounts) will pass to the surviving account holder or holders. But be careful - not all joint accounts will pass to the survivor. When joint accounts are set up as tenants in common, as opposed to joint tenants, the portion of the account that was owned by the decedent will pass under his or her will.
If you have created a revocable or irrevocable trust as part of your estate plan it will likely transfer assets outside of the probate process. Almost all of these trusts are designed to pass directly to persons or other trusts named in the document and do not pass according to a will.
Can a non-attorney probate a simple will in Texas without the need to hire a lawyer?
The answer to your question depends in large part on where you live. In some densely populated counties, the courts are very busy and have adopted policies of not allowing people to probate wills without a lawyer. They simply do not have the time to explain the probate process to everyone that needs help and rely on attorneys to streamline the probate process. A person without an attorney usually will not have the right forms filed and can slow down the hearings quite a bit, which wastes the court's time and the time of others that are waiting in line. In smaller counties, the judges may be willing to let people probate wills on their own.
There is also a legal justification for handling this decision by the Courts. Some courts assert that the real "client" in a probate matter is the actual estate of the person who died, not the person handling the probate of the will (the "executor"). The executor may be allowed to represent yourself in a legal matter, but you cannot represent another party, i.e. the estate in a probate matter, unless you are a licensed attorney. Other courts argue that because many probate proceedings are not straightforward or because witnesses may need to be deposed or cross examined, a lawyer should be present. Judges are sometimes unwilling to let non lawyers handle the representation and conduct the court hearing.
If I don't have a will, then who will inherit my property when I die?
In Texas, all of your probate property will pass under the intestacy laws set out in the Texas Probate Code if you do not have a valid will upon your death. The laws are put into place to insure that your surviving spouse and descendants, if any, receive your estate in the proportions designed by the Texas Legislature, but it usually does not follow your actual intent. The following are examples of how your estate will pass if you do not have a valid will:
IF YOU ARE SURVIVED BY A SPOUSE AND CHILD(REN):
- If all of your surviving descendants ARE also descendants of your Surviving Spouse
- Separate Real Property
1/3 to your Spouse For Life
(Remainder to your children) |
2/3 equally divided among your child(ren) |
- Separate Personal Property
1/3 to your Spouse
(Remainder to your children) |
2/3 equally divided among your child(ren) |
- Community Property
- If you have surviving descendants that ARE NOT also descendants of your Surviving Spouse
- Separate Real Property
1/3 to your Spouse For Life
(Remainder to your children) |
2/3 equally divided among your child(ren) |
- Separate Personal Property
1/3 to your Spouse
(Remainder to your children) |
2/3 equally divided among your child(ren) |
- Community Property
| Your ½ Community Property is equally divided among your children |
Your Spouse retains his or her ½ community property interest |
IF YOU ARE SURVIVED BY A SPOUSE, BUT NO DESCENDANTS AND BOTH PARENTS:
- Separate Real Property
| ½ to your Spouse |
¼ to your father |
¼ to your mother |
- Separate Personal Property
- Community Property
IF YOU ARE SURVIVED BY A SPOUSE, BUT NO DESCENDANTS AND ONE PARENT:
- Separate Real Property
| ½ to your Spouse |
¼ to your surviving parent |
¼ to your brothers and sisters |
- Separate Personal Property
- Community Property
IF YOU ARE SURVIVED BY A SPOUSE, BUT NO DESCENDANTS AND NO PARENTS:
- Separate Real Property
| ½ to your Spouse |
½ to brothers and sisters |
- Separate Personal Property
- Community Property
IF YOU ARE NOT SURVIVED BY A SPOUSE, BUT WITH SURVIVING CHILD OR CHILDREN:
All of your property, whether it is community property or separate property or both, is equally divided among your children. If you have any grandchildren whose parent (your son or daughter) is deceased, those grandchildren will inherit their parents share.
IF YOU ARE NOT SURVIVED BY NO SPOUSE AND HAVE NO CHILDREN:
- If both of your parents are still alive:
| ½ to your father |
½ to your mother |
- If only one of your parents is still alive:
| ½ to your surviving parent |
½ equally divided among your brothers and sisters |
- If neither of your parents is still alive:
| All of your property is equally divided among your brothers and sisters |
I have been named as the personal representative or executor of my mom's will. What do I do when she dies?
Depending on the circumstances in your case there are several steps you must follow and there are other items you need to attend to if it is required to handle the estate. The following is a non-exhaustive list of things you will need to take care of as the executor, but there may be other steps required to probate the will. It is a good outline to start from when you are trying to figure out what to do for your mother's estate.
- Find the Will. Wills are often kept in a safe deposit box, but you may find them at the house in a safe or even a sock drawer. It just depends on where your mother wanted to keep it. You should always try and talk to your parents and find out where the wills, if any, are kept. If it's in a safe deposit box make sure you are authorized to enter the box, otherwise a court order may be required to get the will out.
- Get an Original Death Certificate. You will need an original death certificate for the probate court and will likely need other originals to give to life insurance companies and the like, as proof of death. I recommend picking up at least 5 originals to save you a trip and because they are relatively inexpensive.
- Hire a Lawyer. You will almost always want to hire a lawyer unless you live in a small county and the estate isn't very large. As mentioned earlier, judges in some smaller counties will allow people to handle the probate without an attorney, but you still may have trouble preparing all the necessary forms that are required.
- Application for Probate. Your attorney will have you sign some form of application for probate or an heirship proceeding if there is no will, and it will be filed with the probate clerk along with the original will and an original death certificate. It typically costs between $150.00 and $300.00 for the filing fee paid to the clerk. The application describes certain facts about the person who has died, the will, and the property and debts that were remaining.
- The Probate Hearing. After a ten day mandatory waiting period, a probate hearing will be held at a time scheduled by the court or with the assistance of your lawyer. Your lawyer will advise you of when and where the hearing is held. Depending on the size of the county where the probate is proceeding, you may get into court within about three weeks of the filing of the application, but several factors may cause it to take longer.
- Testimony and Order. During the hearing, there are a number of routine questions you will be asked by your lawyer but they are simple and straightforward. It is not uncommon to be nervous and sad during the hearing, but the proceeding itself is relatively short and easy. The judge will then sign an order admitting the will to probate unless there is a legal reason not to sign the order. After the order is signed you will be asked to sign an affidavit that outlines the testimony you just gave to the judge so there is written evidence of what was said in the hearing. The order and the affidavit will have been prepared by your attorney in advance.
- The Oath. After the hearing, you will need to sign an oath stating that you will fulfill your duties as independent executor or executrix of the estate. The word "independent" means that you will not need to ask the court for permission to sell estate assets or to conduct any other duties.
- Letters Testamentary. After your oath is filed, you will see the county clerk and will receive "letters testamentary" from the clerk. You will need more than one original to handle the estate and I recommend you obtain at least 7 originals since they are inexpensive and it will save you a trip back to the courthouse for more of them. The letters will authorize you to close bank accounts and collect and claim other estate assets.
- Notices. Within 30 days of receiving letters testamentary, you are required by law to publish a "notice to creditors" in a local newspaper. This notice advises creditors of the estate that probate has been filed and let's them know where they may file claims to recover money owed. It must be published even if there are no known creditors. If there are any charities inheriting from the will, you must send out certified letters to them. Proof that you performed these tasks must be filed with the court as well.
- File the Inventory. Within 90 days of qualifying as executrix, you are required to file an Inventory of the assets and liabilities of the estate with the court. The Inventory lists all the assets which pass under the will. The inventory doesn't always list everything a person owns since you don't have to list assets that pass directly to named beneficiaries. For instance, life insurance, retirement plans, some joint accounts, and many other properties are designed to pass directly to a named beneficiary. After the Inventory is filed, the judge will usually sign an order approving the Inventory.
- Tax Returns. Estates valued at over $1,000,000 must file a federal estate tax return and a Texas inheritance tax return within nine months of death. Taxes will be owed if the net estate exceeds that amount. The tax rates on assets over $1,000,000 start at 41% and go as high as 50%. You may also be required to file income tax returns for the estate. Often, the lawyer handling the estate will also prepare the estate and inheritance tax returns. However, few lawyers prepare income tax returns.
Must a will be probated if the estate is less than $1,500,000? Are insurance proceeds included in that total?
There is no requirement that you probate a will no matter how much the estate is worth. Wills need to be probated only if property is not transferred by some other means. You are confusing probate with the filing of a federal estate tax return. Regardless of how the property is transferred at death, if an estate is valued at $1,500,000 or more, then a federal estate tax return must be filed. And yes, you must include proceeds of life insurance owned by the decedent in computing the $1,500,000. (This $1,500,000 amount will be increasing in stages to $3,500,000 by 2009).
The probate process is primarily a method of changing title from the deceased to the person or persons who inherit the property. Some assets require probate, such as real estate and bank accounts held only in the name of the deceased, while others do not, such as life insurance policies or retirement plans payable directly to named beneficiaries.
I was told that a Muniment of Title could be used to settle an account with a brokerage house. I tried that approach with my wife's estate, of which I am the Executor. The brokerage firm would not accept the Muniment of Title because I was not appointed by the court to be the Executor, and they wouldn't look at the will at all, where my role is laid out. What did I do wrong?
It's hard to say what was done wrong. Wills are probated as muniments of title, which is a simplified way of going through probate, all the time, and they usually work just fine. Let's review the steps you should have taken in probating your wife's will as a Muniment of Title. Perhaps you'll discover what went wrong as you read through the process.
First, you should have started by filing the original will along with an application for probate with the county clerk's office. The application should have stated (among other things) that there is no necessity for administering your wife's estate and that there are no debts of the estate other than those secured by real estate. (You can probate a will as a Muniment of Title if there is a mortgage on your home.)
Second, after a mandatory 10 day waiting period, you should have attended a hearing where you or another person would have testified before the court about certain facts relating to the decedent. Most people hire lawyers to prepare the paperwork and handle the scheduling and conducting of the hearing. In fact, most courts don't allow people to appear in court without a lawyer.
Third, and assuming all went well at the hearing, the judge then would have signed an order prepared by your lawyer directing that the assets owned by your wife be distributed as provided in her will. It would have been advisable to add language to the order specifying the name of the brokerage firm, the account number, and the person or persons to whom the securities must be distributed. The order should have also contained a provision waiving the requirement that you report back to the court once the brokerage account has been distributed. Courts will routinely waive this requirement, but you must remember to ask for the waiver.
Last, once the probate hearing was over, you should have ordered a certified copy of the will and the signed order from the clerk's office, and then forwarded those documents to the brokerage house. They may prefer for you to be the court appointed executor of your wife's estate, but when presented with a court order requiring them to disburse the account, they should do as directed.
According to Texas law, the order admitting the will to probate as a Muniment of Title is sufficient legal authority for banks, transfer agents, brokerage houses or other businesses holding assets of the estate to pay those assets to the person or persons named in the will.
If my husband and I die together, where would our children live for the first day or week or month until a judge can determine who will be their guardian? What if there are relatives we absolutely don't want them to live with, even temporarily?
There is no simple answer to your question because where your children would live depends on when you die and where your children are when you die. For instance, you and your husband may be with your children when you both die, thereby leaving them without immediate supervision. Or your children may be at day care, at school, or with a babysitter, and that means the supervision they are receiving would soon be coming to an end. In these types of situations, it is likely that the police will show up and take charge.
The police would allow your children to be placed in the care of a relative or friend as long as they are convinced that person is not unfit to care for the children. The police can use the computer in their car to obtain this type of information. For instance, a relative who has a criminal record would probably not be allowed to take the children. If your children are old enough to tell the police who to call, the police would likely do so and attempt to leave the children with the proper party. But if your children are too young to know phone numbers, addresses, or even complete names, or if no temporary guardian is available, then the police would take your children to Child Protective Services (CPS). CPS would care for your children until a suitable family member or friend is located. CPS may place your children in foster care, if necessary, until a judge determines who the permanent guardian will be. It may be the case that your children are already in the care of a relative or close friend when you both die. In such a situation, the police and CPS may never get involved with the care of the children. Instead, the children would most likely remain with that family until a judge makes a determination as to permanent guardianship.
You mentioned that there may be relatives you don't want your children to live with, even for a brief period. The problem is that if the police don't know how you feel, and if the relative otherwise checks out, the children may be placed in that person's temporary care. Unfortunately, it is too often the case that relatives want to control the children's inheritance, and they know funds will be available if they are acting as guardians. You could prepare a witnessed and notarized document stating your intention regarding who you do and do not want to serve as guardian. In fact, that information is often contained in a person's will. But the problem is that this document will probably not be available when it's needed. Most people don't think to send their kids to school, daycare, or a friend's house with a copy of their will or other legal documents, and even if they did, the police may not be inclined to rely on the document's validity. If the police show up and several relatives or friends demand to take care of the children, the police will most likely not make a choice between them, but will instead deliver the children to CPS. An investigation will then be conducted by CPS to determine who is most suitable to take care of the children until a guardian is formally named by the court.
You should be sure to state in your will who you want to serve as the guardian of your children in the event you and your husband pass away before your children are legal adults age 18 in Texas. You can name any person you want, and you can also provide a list of persons in order of preference. You can even name two persons to serve, but they must be married to each other. Please note the answer to your question may be different if you don't live in a large Texas city.
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