How Are Texas Probate and Estate Administration Different?
In this video, Attorney Ray Kerlick talks about different types of the Texas Probate Process, and he explains how the estate administration process is used when basic estate planning hasn’t happened. Call us at 800-929-1725 for an appointment right away!
Summary of the Texas Probate and Estate Administration Video
– – Hi, this is Ray Kerlick, of Wadler, Perches, Hundl, and Kerlick. I’m here in our Fulshear offices today, and I wanted to talk a little bit about the Texas probate process.
The Texas probate process is a legal document and a legal procedure that’s actually filed in either a probate court, or in a county court at law. Right here, where we are today in Fort Bend County, these procedures are handled at the county courts at law of Fort Bend County. In some of the smaller counties around us, the probate procedures are handled in county court. While in Harris County, there are special probate courts that handle nothing but probate matters.
So, what is a Texas probate matter? Well, a probate matter can include lots of things. It can include a will and the admission of a will into the records of the county, which is called probating a will. It can also include a guardianship, and that’s a situation in which a guardian is designated for someone who has lost some of their capacity. And then finally, it can include determinations of heirship. Heirship means who are the rightful heirs of a person who is deceased. There are some other collateral issues that can also be involved, but those are the big three.
So again, how can we help in that process? We have experience in all of the surrounding counties, as well as Fort Bend County, and what we can do is kind of help you when you’ve got a situation with a loved one, where you need to figure out what to do with their estate, or whether you might need a guardianship. These are things that we can evaluate and discuss with you.
As far as probating a will, basically that’s a process that involves finding the original will, so make sure we got that. Finding the person who’s been named as the executor or administrator of the estate of the deceased person. That person then takes the original will, takes it down to the county clerk’s office, and offers it to confirm that, in fact, it is the original and the real authorized will of the deceased person. At that point, there’s a hearing, and that hearing is with a judge. And the judge will confirm and determine that in fact that this is a will, that the will has complied with all the legal requirements in Texas, of the Texas Probate and Estates Code, and basically that everything’s, all of the I’s have been dotted and the T’s have been crossed.
At that point, the judge will then issue what are called letters testamentary. Letters testamentary are essentially a power of attorney for you to act on behalf of the deceased person. And that allows you access to their legal records, their financial records, their financial accounts, and even their real estate, and allows you to distribute their property in accordance with the will that you have offered for probate.
Estate Administration instead of the Texas Probate Process
In a similar but much more expensive process, when folks don’t have a will, we do what’s called an administration, which is included also with a application to determine heirship. And so, even in situations where, for example, this person only had two children. Well, everybody knows that. Their husband was deceased many years ago. Mom only had the two kids. It’s not enough, it’s not enough for everyone to know that.
In fact, what we have to have happen is a judge or a court with competent jurisdiction has to determine that, in fact, these are the two folks, and the only two folks, who have the right to that estate. It’s an expensive process, because it’s not only first determining the heirship, that process includes typically the appointment of an ad litem attorney. That ad litem attorney is different than your attorney. That attorney is basically designated and appointed to make sure that there aren’t other heirs out there who have been ignored or missing.
Once the judge has a hearing on that determination, and certain names and percentages of interest will be included in the final order, then there’s a second process, whereby the judge determines who’s the best person to act as the administrator of this estate. The person who’s the administrator will have to post a bond, and will also have to follow certain guidelines that require approval from the court before selling or disposing of any assets of the estate, and then will have to provide a final accounting at the conclusion of the process, before they’re released from any personal legal liability themselves. And that’s when the bond will be released.
So this is a complicated procedure, and it’s one we have a lot of familiarity with and can walk you through. We can also help you avoid that process, by basically asking you to join us in helping us provide you and prepare for you an estate planning package, which will avoid that issue. The other issue that we’ll avoid with an estate planning package is the final part of the probate courts or the estates code, and that is guardianship.
So guardianship is essentially a situation in which a person is designated the guardian for someone who lacks capacity in some way. Again, a very complicated process. Again, an ad litem attorney will have to be appointed and separately paid. And again, we’ve got an ongoing annual set of reporting guidelines that must be followed, throughout the rest of the life of the person that you’re handling, what we call the ward, the person who is being cared for. And so, to avoid that, again, with proper estate planning, and again, even basic estate planning package that we can provide for you, will basically allow you to avoid the necessity for this guardianship, and the expense and ongoing issues associated with it. That’s it, if it’s something that has come upon you and you’re worried about, please contact us, set up an appointment today, to allow us to discuss with you what your options are, and how we can help you get through this difficult time in your life. Thank you.