Texas Inheritance Law Information For Families Unfamiliar With Texas Probate Law by Central Texas Inheritance Lawyer Jason Coomer
Texas Inheritance Law for families unfamiliar with probate can be extremely difficult. Not only have they lost a loved one, but they also often have to navigate Texas courts, financial records, insurance companies, deed records, and banks. Further, some have to deal with upset and sometimes aggressive family members as well as other greedy people who are attempting to claim wealth from the deceased loved one. Understanding the basics of Texas Inheritance Law and when it is time to call a lawyer can be extremely helpful in navigating this difficult time. Below are a few basic concepts and answers to basic questions that can helpful.
Common Texas Will and Probate Questions
What is a Will and is it necessary?
A Will is a document which states the intentions and wishes of a person to take place after their death including what happens to and who gets their wealth. A Will is not necessary under Texas law, but if you do not have a Will and you die, your wealth is distributed according to Texas law and this can sometimes result in increased legal costs to determine heirs and unintended estranged heirs or laughing heirs receiving large amounts of inheritance. If you have significant wealth, want specific loved ones to receive it, and want your loved ones to have fewer legal expenses after you pass; it is best to have a Will.
Should I write a Will myself or use a "do it yourself" Will kit?
The complexity of a Will can very greatly from a short hand written Will called a "Holographic Will" to a several page complex Will that creates testamentary trusts and has several contingencies. Overall, if you have significant wealth, it is often best to contact an estate planning attorney to answer questions, draft the Will, and explain specific options and potential traps. In handling probate cases, I have run into several "do it yourself" Wills and Holographic Wills that have caused 1) significant controversies in families resulting in legal battles, 2) unintended consequences caused by transfers to minors, wards, or persons on social security disability, and 3) complete legal messes and trapped wealth requiring several attorneys and court appointed ad litems to resolve. In short, be careful if you have significant wealth and decide to do it yourself. Saving money in the present can cost significant amounts to your loved ones in the future.
Does a Will need to be filed?
No, if the person who passed has little to no wealth or all their wealth has passed through a Trust, non-probate assets, or other means, there may not be a reason to probate a Will. However, if a person has a valid Will and wealth in their estate including real property their Will should typically be filed for probate.
Does a Reading of the Will need to take place?
No, this is a Hollywood myth. Normally, there is no reading of a Will. The Will be filed for Probate and all beneficiaries in the Will should receive a copy of the Will pursuant to Texas law. An unnecessary reading of a Will can result in some extremely difficult and awkward situation. That being said, many family members review Wills together and can cooperate in agreeing how to handle the probate process.
What is an Executor?
An executor or executrix is a person who is named in a Will to manage the deceased's estate, fulfill the deceased's wishes, and follow Texas legal requirements regarding legal notices and inventories. An executor or executrix will not be appointed until a Will is probated and letters of testamentary are issued. In other words, a person named as executor has no power or authority until a Will is probated and they are appointed.
An executor or executrix should be a responsible person that you trust. They do not have to be a resident of Texas, but they have to be a competent person over the age of 18 years of good character who is not a convicted felon.
Most people who are named as an executor or executrix hire a lawyer to represent them in Probate court and to ensure that they comply with legal duties. The person who serves as executor or executrix can be removed or sued for breach of fiduciary duty if they to not follow the Will or Texas law. The estate will typically pay the executor's or executrix's attorney's fees and costs.
Contested v. Uncontested Probate
There are two type of probate lawsuits contested and uncontested. Uncontested probate lawsuits include Will probate lawsuits and Suits to Determine Heirships where there is no dispute between the heirs or beneficiaries regarding who gets what and the value and validity of estate assets or estate debts. It is typically best to have a Texas probate lawyer, if you are filing an uncontested probate lawsuit. Contested lawsuits include Texas Will Contests, Texas Breach of Fiduciary Duty Lawsuits, Texas Real Estate Partition Lawsuits, Texas Financial Elder Abuse Lawsuits, and Texas Inherited Business Lawsuits. A Texas probate lawyer is almost always needed and highly recommended, if you are in a contested probate lawsuit.
Contingent, Hourly, and Hybrid Attorney Contracts
Most Texas probate lawyers work on hourly contracts where the family of a deceased has to pay the lawyer a retainer and then the lawyer bills against the retainer until it is depleted, then additional money will need to be paid if additional work needs to be done.
However, in some situations family assets cannot get transferred or collected by their rightful heirs or beneficiaries because the heirs and beneficiaries cannot afford the upfront cost of probate and other transfer costs. In these situations, a Texas Contingent Probate Lawyer who works on a contingent or hybrid contract is needed to help heirs and beneficiaries transfer estate property to rightful heirs and beneficiaries. In these situations, the Texas Contingent Probate Lawyer will typically need to see evidence that there are actual significant assets in the estate and confirm that the potential clients are the rightful heirs and beneficiaries of the estate. In these cases, bank statements, life insurance policies, royalty statements, mutual fund statements, retirement fund statements, real property deeds, property tax information, and other evidence of the estate assets can be useful in determining the approximate value of the estate and if a contingent contract for probating the estate can be viable. For more information on Texas Contingent and Hybrid Probate Lawsuits, please feel free to go to the following web page: Texas Contingent Probate Lawyer and Texas Death Benefit Collection Lawyer.
