FAQs For Probate, Estate Administration
Q: What is probate?
A: After a person dies, probate procedures prove the validity of the Will appoint the Executor, and gives the Executor named in the Will legal authority over the assets. Thereafter, the Executor pays off debts and taxes of the estate, and distributes property as designated in the Will. The court will generally follow the provisions in the Last Will and Testament.
The validity of the will must be proved in a court and occur within 4 years after the death of the testator.
Some people think having a will avoids probate. This is not the case. A Will is used in probate to determine who receives what property, who is appointed guardian to any minor children and who is the Executor.
If an estate includes real estate or minor children, a formal probate action in court is generally required.
Q: How long does probate take and are assets frozen during that probate?
A: With a valid Will, Texas has one of the shortest probate processes. If there is no will contest, the entire probate process can be finished in four months, during which the assets are rarely frozen.
During the probate process, the Executor should be able in the first 30 days to access funds to pay all re-occurring expenses like house and car payments and utilities, as well as funeral expenses and medical bills.
Q: What is involved in probate?
A: Probate of a valid will is approximately 10 steps. Badeaux and Associates provides you with an outline of each and every step and applicable time frames. The first step is to hire an attorney to file an Application to probate the Will, attach the original Will and check it into the court system. Another step is the hearing in court where the Executor is sworn in. Attorneys at our firm offer to drive the executor to the probate Court to make the trip effortless for him or her.
Another step is that within four months, the Executor files the Inventory. The Inventory consists of the major assets like the house, bank accounts and automobiles. The Inventory is generally the last document filed.
Q: Will my heirs have to pay estate taxes?
A: Estate taxes are taxes paid on the property left to an heir when someone dies. The question of whether taxes are owed depends on the size of the estate and who the heirs are.
a.) If the spouse is the heir, and a U.S. citizen the spouse will rarely have to pay estate taxes for assets he or she inherited. The concept is that the spouse accumulated community property while married and should not pay estate taxes on those assets.
b.) A very favorable estate tax law was passed in December 2010, referred to as the “2010 Tax Relief Act”. Under this law, estates under $5 million are excluded from paying estate taxes. For estates over $5 million, the top federal estate tax rate is 35%.
Unfortunately, the law is temporary, lasting only 2 years, through December 31, 2012.
The estate tax law that applies is the law and estate tax amount applicable at the time of your death; not at the time you make your Last Will and Testament.
Q: When and how are assets distributed?
A: If the executor was named in the Will and has been formally appointed by the judge, the executor has the legal power to transfer the assets to the beneficiaries named in the will. For example, in approximately six months after beginning probate, if a correct inventory has been filed with the Court and all heirs determined, the executor can write checks on the checking account, transfer stocks and bonds, sign the car title to the beneficiary, and execute the new warranty deed on the house to show title in the name of the beneficiaries listed in the Will.
Q: What about real estate?
A: Many decedent’s owned a house, minerals, inherited property or commercial real estate. Before practicing probate for 20 years, Ms. Badeaux practiced real estate and corporate law exclusively, including working one year at Stewart Title Company in Houston, Texas. Ms. Badeaux brought her experience to the firm of transferring titles to real estate and businesses. Therefore, the firm is uniquely qualified for complex distribution of real estate, if title is an issue, in second marriages, and for sophisticated business asset distribution.
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