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Tales From The Probate Court

In general, estate planning is a pretty calm area of law. We draft wills, we set up trusts, and we help establish powers of attorney—it’s all relatively bland, right? Well, not exactly. Sure, most of the time we’re helping our clients achieve peace through planning, but sometimes we deal with some pretty scary stuff. No, I’m not talking about ghastly will provisions or terrifying trust stipulations, I’m talking about something much more frightening than that. I’m talking about probate—and if you’re facing the possibility of probate court, you already know how scary it can be. It’s overwhelming. It’s foreign. It seems like the odds are stacked against you. But probate court doesn’t have to be so frightening. Keep reading for a few stories about real clients who survived probate and made it through to the other side.

•Okay, my relative died without a will – what do I do?
Unfortunately, this happens more than it should. While this can be a scary situation when there are heirs who don’t get along with each other or heirs that are minors, it is still a situation that we can walk through. The most important thing to remember is to get advice early and often from the right people. Talk to your probate attorney and your CPA before making any big decisions. For example, a client of mine recently lost her husband. They were a blended family (he had adult children from a previous marriage) and he left her as a beneficiary of his life insurance policy. She received the life insurance funds, and decided to make a cash gift to her step-children. After coming to meet with me, I informed her that based on the intestacy (dying without a will) laws in Texas, his adult children had a claim to their father’s half of the home as well. Had she spoken with an attorney first, she would have been able to use the life insurance money as a way to negotiate buying out their interest rather than just making a gift to them and then now hoping they will return the favor and make a gift back to her.

•Wait, my relative HAD a will – why am I having to go through probate?
In Texas, when a person dies with a will and owns property, the will must be probated in order to transfer the title to those assets to the beneficiary. The probate process is there as a safeguard to ensure that the rightful beneficiaries and creditors receive the assets due to them. Typically, probating a will in Texas is a fairly straightforward process. About 2 weeks after filing the will, there is a hearing that usually takes less than 5 minutes and the will is admitted to probate and the executor then has the authority to handle the estate. Some situations take longer, but most of our clients only make a single court appearance and then are able to handle everything else on their own.

•What happens if I get in a probate fight with other relatives?
Unfortunately, having a will doesn’t always guarantee that things go smoothly. We can’t guarantee that no one will contest a will. I’m often asked by clients in the planning stage if I can guarantee that the will won’t be contested. I always answer with the truth: “No.” We can’t ever stop someone from filing a contest. However, we can do everything in our power to make sure that our documents will stand up against a contest. Simple things like having the will executed in an attorney’s office, with unrelated witnesses and a notary. We make sure that beneficiaries are not in the room when the will is signed. We ask questions in front of witnesses to ensure that the person signing has the capacity to execute the documents. These things go a long way towards discouraging contests. If you do end up in a probate fight, the first step is ensuring that you have an attorney who is going to adamantly represent your interests and aggressively fight for you.

•Okay, I survived … now what?
One of the comments I hear from folks who have gone through the process of intestate probate is, “Please tell everyone to get an Estate Plan. Don’t let them put their family through this.” I had a client in my office today say this process had made her rethink her estate plan and she was going to do everything she could to make it simple. One of the best ways to do that is to consider a Living Revocable Trust. A Living Revocable Trust can help your family avoid the probate process altogether. Assets can be transferred during your life to a trust that holds the property (you remain in complete control). The assets then pass at your death without anyone ever stepping foot in a courtroom. The process allows you to decide who benefits from your estate and keeps those wishes private.

The probate process should not be something you fear, but instead should be something you actively plan for in your life. Get help from trusted professionals as you make these decisions, but most of all, just make these decisions. Don’t leave the decisions to chance, because that is truly scary.

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