Frequently asked questions

Probate is the orderly process of winding up the business affairs of a person who has passed away. The Court determines whether a testamentary document is the true last and valid Will of a Decedent through the completion of certain requirements. Probate assets are assets controlled by the Decedent’s Will and/or estate, including assets titled in the Decedent’s name without a designated beneficiary. The successful completion of probate distributes probate assets amongst beneficiaries, creditors, and any others with a valid interest in a Decedent’s estate.

Upon death, title to the decedent’s property passes immediately to the beneficiaries under the decedent’s will or to the heirs-at-law if the decedent died without a will. However, there must be an actual transfer of ownership of the property by proving the will in court or, if there is no will, by having a court determine who are the decedent’s heirs. The purpose of court involvement is to protect the rights of the family, those entitled to receive property, and the creditors of the decedent’s estate.

Therefore, although title to property passes immediately at death, the assets of the estate are subject to the control of the executor or administrator of the estate for the purpose of settling the debts of, and claims against, the estate.

After the payment of debts and claims, the remaining assets are distributed to the decedent’s beneficiaries or heirs-at-law. If the decedent died with a legally valid will, then his or her property is distributed according to his or her wishes as expressed in the will. On the other hand, if the decedent died without a will or if the will is declared invalid, the estate is distributed to the decedent’s heirs as determined under Texas law. The decedent’s heirs may not be the persons to whom the decedent wished for his or her property to pass.

The probate of a Will is available when a Decedent dies testate, i.e. with a valid Last Will and Testament. Usually, it is necessary to probate a Will if creditors need to be paid, property needs to be collected, or if assets need to be distributed to beneficiaries. The most common form of probate occurs when a Will nominates an Executor to administer the estate in accordance with the provisions of the Will.

The judicial probate process begins with the filing of an Application to Probate Will and for Issuance of Letters Testamentary (Application). This application is filed with the county clerk. Typically, an Executor named in a Will applies to the Court requesting the admission of the Will to probate. However, Texas Estate Codes (TEC) allows any “interested person” also to apply. The TEC definition of “interested persons” includes heirs, spouses, devisees, creditors and any others having a claim against the estate being administered.

When two people have made a commitment to each other, it is hard to imagine the end of that union. Unfortunately, divorce is very prevalent in our society. Couples that do not have a pre-nuptial agreement leave themselves open to having their assets divided by the state. Having your financial future determined by a third party is not an optimum situation.

A premarital agreement can protect the inheritance of children and grandchildren from a prior marriage. It can see to it that you are not obligated to take on your spouse’s significant debts, and it can protect your business interests in the event of divorce.

What are the advantages of having a well written Will?

There are several advantages to a well written will:

  • You have control over who takes care of your children
  • You decide how all property, including land, homes, cash, bank accounts, vehicles, life insurance policies and similar items will be distributed
  • You are the sole voice that states who receives the benefits of your estate and even when those benefits are distributed
  • With your decisions being legally binding, the chances of expensive and lengthy legal battles over your estate may be greatly reduced
  • You can state who is executor of your estate and not let this be decided by the state
  • You can have peace of mind knowing that those you care for will be properly taken care of.

If the Decedent had a Will but did not have any creditors whose loan was not secured by real property belonging to the estate, there is no need for administration of the Decedent’s estate. The Will can be probated as a Muniment of Title.

Like the probate process, the Court must rule on whether the Will is valid, therefore, a hearing is necessary with a Muniment of Title, thus the Applicant, who could be the Executor named in the Will or any interested party, may make application and schedule a hearing with the Court.

However, unlike probate, with a Muniment of Title, no Administrator/Executor will be appointed. Instead the Will itself shows who owns estate assets. A Court will approve a Will as a Muniment of Title if the Applicant can show the following:

  1. That the estate has no unpaid debts, except for debts secured by liens on real estate; and
  2. That there is no necessity for administration, because there are no creditors.

Once the Court enters an order admitting the Will to probate as a Muniment of Title, the estate beneficiaries can move forward to transfer the Decedent’s assets into their names with legal authority.

When someone dies without leaving a Will, the most commonly used estate settlement proceeding is a judicial declaration identifying the heirs of the Decedent. In a judicial declaration of heirship, the Court makes a formal declaration as to the identity of the Decedent’s heirs, and the percentage each heir owns in the estate. The judgment allows the Decedent’s property to be divided and distributed among the heirs. The Court’s formal declaration is final.

The judicial declaration of heirship can avoid the probate process, but it also is used in conjunction with dependent administration, when someone passes away intestate (without a Will). A judicial declaration of heirship is also utilized when the Decedent died with a Will but failed to dispose of all the estate assets. Thus, the Decedent technically died partially testate and partially intestate, and an heirship proceeding may be required to determine the legal owners of any remaining estate assets.

An heirship proceeding may be utilized when more than four years have elapsed since the Decedent’s death. Even if a Decedent had a Will, if the applicant does not probate the Will within four years from the Decedent’s death, then an heirship proceeding may be required if the Court will not admit the Will to probate as a Muniment of Title.

It is important to note that a judicial declaration of heirship is time-consuming and often costly alternative to probate. The Court is required to appoint an attorney ad litem to represent the unknown heirs, and that attorney will report his or her findings to the Court at the determination of heirship hearing. The Court also requires two disinterested witnesses to testify as to the Decedent’s family history at the time of the hearing.

Part of planning for the future is what will happen to your children and your estate once you pass on. In the State of Texas this involves wills and trusts. A trust is a relationship where one person, several people, or a corporation manages your estate for the benefit of someone else. A common example is how your property will be handled in case of death. An individual that you trust can be assigned to be in charge of your estate. This person, the trustee, can then see to it that your children receive the financial assistance that you desire and, in the way, that you specify.

There are many types of trusts that have various uses. Our goal is to work with you so that your trust is customized for your needs and achieves what you desire. Frequently, people consider that they have to be of a certain age, usually older, to need a trust. Sometimes they feel that they must have a certain amount of wealth in order to require a trust. Neither of these ideas is true. If you have a decent job, have life insurance and minor children, a trust can help give you peace of mind about the future.

The elements of a trust are not complex. There needs to be a trustee, someone who is responsible for managing and distributing your estate. There needs to be clearly spelled out who are the beneficiaries who will have the property distributed to them. The trust administers assets such as property, cash, real estate, insurance and stock. Finally, a trust agreement that formally states what you want the trustee to do must be carefully drafted.

Guardianship is a judicial proceeding in which a person or entity may be granted full or limited authority over an incapacitated person (ward) to promote and protect the well-being of the ward and/or the ward’s estate. The guardianship should be designed to encourage the development or maintenance of maximum self-reliance and independence of the ward by limiting the power or authority of the guardian based upon the person’s actual physical or mental limitations.

There are two types of guardianship – guardianship of the estate and of the person. The guardian of the estate is in charge of the ward’s property and finances. The guardian of the person is in charge of care and custody of the ward. Factors considered in the guardianship proceeding include:

  1. the extent of the ward’s diminished incapacity
  2. the necessity of guardianship, and
  3. the most appropriate person to be appointed guardian, with “the best interest of the ward” as the underlying guideline.

If the potential ward is a child, incapacity is not an issue because it is automatic under the law. Incapacitation is the threshold issue in determining guardianship for an adult since guardianship is an extreme taking of the wards rights. Only if the ward is found to be incapacitated are the other issues considered.

These functions can be done by one person or by different persons. An executor sees that the instructions of your will are carried out and handles any legal formalities regarding your estate.

The duties of this person can include:

  • Ensuring all required taxes are paid in full and on time
  • Maintaining full and accurate accounts
  • Seeing to the funeral arrangements for the deceased
  • Gathering all the assets of the estate
  • Making certain that property of the estate is distributed according to the terms of the will
  • Paying off any debts the estate may have
  • Keeping the benefactors informed regarding the estate

An executor should be someone who you feel would properly handle the duties and that you trust to carry them out.

A vital decision for any persons with minor children is who will take care of them if you and your spouse die. This is the role of the guardian. A guardian will be the person who will raise your children if you pass away before the child reaches the age of 18. They will be legally able to make any decisions you would have made as a parent. Decisions such as the child’s education, their religious upbringing and other important decisions will be made by this person. The court has the final say regarding who the guardian for your child will be. In the vast majority of cases, the court will follow your wishes. The person you choose can be a family member but doesn’t have to be.

A trustee administers any trust that you have created. Their job may involve investments of estate assets along with distribution of money from the trust. More than one person can be assigned to this duty. A trustee may have the power to hire professionals, such as attorneys and investment advisors, to assist them in their actions. The actions that they take need to conform to your instructions and this is where a well-written trust document can benefit you. The person or persons you choose to assume this role should be very trustworthy and ethical. Clausell Law Firm would like you to feel comfortable in about your choices for any of these important roles. Choosing the correct persons can go a long way towards you feeling comfortable about your plans for the future.

A pre-nuptial agreement is a contract entered into by two people prior to marriage. It generally lays out provisions for division of property and spousal support, in the event of divorce or death. The agreement must be in writing and be executed voluntarily. There needs to be full disclosure of assets between both parties and the agreement must be fair and just. Pre-nuptial agreements are recognized in all 50 states. Texas is one of 9 community property states and the agreement must strictly comply with the laws governing such matters.

While it may be a difficult subject to approach, a pre-nuptial agreement can be of great benefit in protecting both parties if the marriage comes to an end. You do not have to be wealthy to need a premarital agreement. You have worked long and hard to accumulate your assets and have the right to protect them.

When two people have made a commitment to each other, it is hard to imagine the end of that union. Unfortunately, divorce is very prevalent in our society. Couples that do not have a pre-nuptial agreement leave themselves open to having their assets divided by the state. Having your financial future determined by a third party is not an optimum situation.

A premarital agreement can protect the inheritance of children and grandchildren from a prior marriage. It can see to it that you are not obligated to take on your spouse’s significant debts, and it can protect your business interests in the event of divorce.