The passing away of a loved one brings many legal challenges, questions, and fears. The Allen Law Firm stands ready to answer your questions, walk you through the legal process, and give you options to quickly and correctly handle your loved one's affairs.
If a person dies testate (with a will) then the will may need to be probated. Probating a will means to officially prove up the will in front of a judge. Deciding whether to probate a will and seek an executor for the estate (as opposed to taking some other less formal action) can have dramatic long lasting effects on the estate and the family members involved. When a will has been drafted correctly, and if no objection is made by a interested party, the process can be relatively quick. We can help you streamline the probate process and decide whether probating a will is necessary.
INTESTATE ADMINISTRATION (NO WILL)
When a person dies intestate (without a will) the probate process can be difficult. Any property owned by the deceased person will be distributed in accordance with state law. A judicial determination of heirship may be necessary and If all heirs agree, probate may still occur in a relatively quick and streamlined process. However, if the heirs cannot agree on who should be in charge of the estate, or if the heirs are not easily acertainable, then the process can become difficult and complicated. A family may have several legal options when a loved one passes away depending on assets/debts involved and the goals of the family. We can help you weed through the legal red tape involved with the deal of a friend or family member.
GUARDIANSHIP (OF THE PERSON AND ESTATE)
TA guardianship may be needed for those that cannot mentally, emotionally, or physically care for themselves. Generally speaking, guardianship law is split into two categories (1) the person and (2) the financial affairs of the person. A guardian is a court appointed administrator for a minor or incapacitated person. A guardian of the person is appointed by the court to take care of the physical well being of another person. A gaurdian of the estate is appointed by the court to take care of another person’s property. A guardian can either be appointed for the person, or the estate, or both. We can help you determine the standards and process for seeking a guardianship appointment.
SMALL ESTATE AFFIDAVIT
A small estate affidavit can be used in lieu of opening a full estate. Estates Code 205 permits the use of a small estate affidavit when the deceased individual died more than 30 days prior to filing the small estate affidavit with the court and the value of the assets (not including the homestead) is less than $50,000. All heirs must agree and sign the small estate affidavit and the affidavit must list all the assets and liabilities of the estate. If the homestead is the only real property in the estate, then title to the homestead may be transferred by use of the small estate affidavit. We can help you determine if a small estate affidavit is best given your situation.
PROBATE WILL AS A MUNIMENT OF TITLE
A muniment of title action allows a will to be probated without appointment of an administrator when the estate does not owe an unpaid debt. See Estates Code 257. Debt secured by real property does not count as a debt for purpose of determining whether a muniment of title action is appropriate. One advantage to probating the will as a muniment of title is that it simplifies the process. No administrator is appointed and the heirs named in the will take the property according to the terms of the will. Once the will is probated as a muniment of title, the will and order can be recorded in the property records to effectively transfer title. We can help you know if a muniment of title action is available in your situation.
A creditor administration occurs when a creditor files the application to open probate for an estate that owes the creditor money or property. The law allows a creditor to open an estate and to seek a court appointed administror for the estate. Opening an estate allows the creditor to file a claim against the estate and seek payment or enforcement of such claim in the probate court. A creditor may choose this route in order to conduct a foreclosure on secured property or to force payment of the amount due from other estate assets. A creditor administration can be a useful tool if done correctly, however, there are many pitfalls and some risks. A knowledgeable attorney with real creditor administration experience is needed to navigate the process correctly.
There are two basic types of probate administration in Texas: Independent and Dependent. An independent administration allows the administrator, once appointed by the court, to perform most tasks outside the purview of the court. Generally, an independent administrator can take any action for the estate that a deceased individual could have taken when he/she was alive — without separate court permission. Often, an independent administrator can even sell property without court permission. An independent administration is less formal and less restrictive than a dependent administration. As a general rule, the court will appoint the administrator as an independent administrator if the will requests such designation or if all the heirs agree (if no will exists).
There are two basic types of probate administration in Texas: Independent and Dependent). An dependent administration requires the administrator, once appointed by the court, to seek approval from the Court for most decisions. A dependent administrator “depends” on court approval to sell property, allow claims against the estate, and many otherwise routine tasks. A dependent administrator often must pay a bond to ensure compliance with the rules and his/her fiduciary appointment. A dependent administration is more formal and more restrictive than an independent administration. As a general rule, the court will appoint the administrator as a dependent administrator if the will does not request an independent administration, if a will is contested or found deficient, if no will exists and the family is not in agreement, or if a creditor takes action to open the probate case. We can help you determine if a dependent administration is necessary and can help you navigate the dependent administration process.
TEMPORARY (EMERGENCY ADMINISTRATION)
In extraordinary circumstances a court will appoint a temporary administrator for the estate. A person must show facts to support the emergency appointment of an administrator. If an emergency requires immediate appointment of an administrator for the estate then the court will appoint the administrator and allow other interested parties to object at a later date. The appointment will be limited and the court will only grant the powers necessary to deal with the emergency. The temporary administration will expire, unless converted to a permanent administration, within 6 months. We can help you determine if a temporary administration is appropriate in your situation.