Kendall and Bexar County Probate

Experienced Probate Attorney in Boerne, TX

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How does probate work?

There can be terrific grief and pain at the loss of a loved one. Beyond grief and pain, when you add external stresses to the equation you can have a disaster on your hands in very short order. Part of the responsibilities or duties of an executor or administrator of an estate can be to reduce the level of stress during the Texas probate process. The fundamental duties of a personal representative (also known as an “executor,” if male, or an “executrix,” if female) of an estate are the same as those of a trustee–protecting the assets and interests of the beneficiaries. One way to protect those assets and interests and, at the same time, help the probate process go smoothly, is to have all of your ducks in a row and prepare for court as best you can. Read on for some essential reminders about the Texas probate process and how representatives can assist with the process.

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Types of Probate in Texas

Texas offers various probate options depending on the estate's complexity and the deceased person's specific circumstances.
The primary probate types include:

Independent Administration

The most common type of probate in Texas, independent administration grants the executor considerable autonomy in managing the estate without court supervision, making the process more efficient and cost-effective.

Dependent Administration

In this type of probate, the court closely supervises the administrator's actions, requiring approval for most decisions. This process is more time-consuming and expensive but is used when there are disputes or concerns about the estate.

Muniment of Title

If there is a valid will and no significant debts other than those secured by real estate, the estate may qualify for this streamlined probate process, which involves transferring title to property without full administration.

Small Estate Affidavit

For estates with a value of $75,000 or less (excluding homestead and exempt property), a small estate affidavit allows for asset distribution without going through the formal probate process.

Determination of Heirship

If a person dies without a will, this court proceeding identifies the legal heirs and their respective shares of the estate.

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Importance of a Will in Texas Probate

Having a valid will is crucial to ensure that your assets are distributed according to your wishes. A will allows you to:

Appoint an executor to manage your estate
Name guardians for minor children
Specify your desired distribution of assets
Provide instructions for specific bequests, such as charitable donations

Intestate Succession in Texas

When a person dies without a will in Texas, their assets are distributed according to state intestacy laws. The distribution depends on the deceased person's marital status, surviving family members, and the type of property involved (community or separate property).

Avoiding Probate in Texas

Probate can be a lengthy and costly process, so it's often beneficial to take steps to avoid it when possible. Common methods of avoiding probate in Texas include:

Joint Ownership: Jointly owned property with rights of survivorship automatically passes to the surviving owner without going through probate.
Payable-on-Death (POD) Accounts: Bank accounts and investment accounts can be designated as POD, allowing the funds to pass directly to the named beneficiary upon the account holder's death, bypassing probate.
Transfer-on-Death (TOD) Deeds: Texas allows real estate to be transferred to a named beneficiary through a TOD deed, avoiding probate.
Living Trusts: Creating a revocable living trust and transferring your assets into the trust can help you avoid probate while retaining control over your property during your lifetime.

Probate and Estate Taxes in Texas

Although Texas does not impose a state-level estate or inheritance tax, federal estate taxes may apply to larger estates. As of 2023, the federal estate tax exemption is $12.92 million ($25.84 million per married couple), subject to change in future years. Estates exceeding this exemption amount are subject to federal estate taxes.

Tips for Estate Planning in Texas

Proper estate planning can help simplify the probate process and ensure that your assets are distributed according to your wishes. Here are some tips for effective estate planning in Texas:

Create a valid will and update it regularly to reflect your current circumstances and wishes.
Consider establishing a living trust to avoid probate and maintain control over your assets during your lifetime.
Use joint ownership, POD accounts, and TOD deeds strategically to minimize probate involvement.
Consult with an experienced estate planning attorney to help you navigate the complexities of Texas probate law and create a comprehensive plan tailored to your needs.

Navigating the Texas probate process can be a daunting task, but understanding the different probate types and the importance of a valid will can help you make informed decisions about your estate planning. By proactively planning and working with an estate planning law firm like McCammon Law in Boerne, TX, you can ensure that your assets are distributed according to your wishes and minimize the burden on your loved ones during a challenging time.

It’s okay to ask for help.

So you see, there is more than a little pressure on the personal representative. As a result, it is essential that the representative work in concert with Shawn McCammon, an experienced probate attorney to guide the representative or beneficiaries during this process … and avoid all of the hidden landmines.