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. The majority of probate cases are handled through Independent Administration, which can usually be completed in less than six months with a properly drafted Will. In addition to Independent Administration, probate may be carried out through other legal means:
- 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.
- 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.
- 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 $5.45 million. Payment of taxes must 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, IRAs, 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: