Lake Jackson Wills, Trusts & Probate Attorneys
COMPASSIONATE BRAZORIA COUNTY LEGAL REPRESENTATION IN END OF LIFE MATTERS
Death is an uncomfortable topic for most people. Because of this, many people fail to draft wills that clearly lay out their wishes or they utilize online wills that may or may not work, and surviving family members must turn to the court system to figure out what to do. These matters are often painful and emotional, as not only have these individuals lost a loved one—but they must also fight against each other in court.
At The Cordoba Law Firm, PLLC, our Lake Jackson and Pearland wills, trusts, and probate attorneys provide the tools you need to avoid contested litigation after your death. If you are already involved in contested litigation in a probate matter, our attorneys represent your interests in court. We have assisted individuals and families facing end of life matters with dignity in Brazoria County and surrounding counties.
WHAT HAPPENS IF YOU DIE WITHOUT A WILL IN TEXAS?
If someone dies without having a will in place, that person’s estate will be distributed according to Texas’ intestacy laws. If a person dies without a will, it is called dying intestate. Thus, intestacy laws direct which surviving family members inherit from the deceased. Those laws also control who may be the administrator of your estate. When you die without a will, you do not choose…the law chooses.
Surviving family members who may inherit from the laws of intestacy include:
- Children, including adopted children
- Other relatives may also be included, depending on the deceased’s relationships at the time of death
First, it is important to note the types of property in Texas which may be either community or separate. Community property is generally acquired during a marriage—by either spouse. Community property is considered the property of both spouses, regardless of who the property is titled to. Exceptions to the general rule include property that is gifted, inherited, acquired before marriage, or purchased with separate funds.
Separate property is typically acquired by inheritance, gift, before marriage or after divorce. Therefore, separate property remains the property of the individual.
If the deceased dies without a will, was married and had children in common with his or her spouse, the spouse inherits all the community property. In terms of separate property, that surviving spouse will inherit one-third of the separate property, which is personal property, and a one-third life estate in separate property, which is real property. The children receive equal shares of the remainder of the estate.
If the deceased was married and had children, but those children were not the surviving spouses, the surviving spouse inherits a third of the separate personal property. The surviving spouse also receives the right to use the homestead for the rest of his or her life. The children receive everything else, including the one-half interest in community property of the decedent. Texas law also provides for very specific distribution when the deceased dies without children and is survived by parents, siblings, and other relatives.
Dying without a will almost always makes the probate cost significantly more. And disputes often arise after a relative dies intestate. These matters must be litigated in probate court, which may take many months or longer and make the process far more expensive than it should be. Therefore, it is always best to have a will in place.
THE PROBATE PROCESS IN TEXAS
Our lawyers provide representation during the probate process after the death of a family member. Probate is the process during which the court legally recognizes a person’s death, reviews the person’s will and assets, and then oversees the process of the assets being distributed to beneficiaries and debts being paid.
Unlike many other states, Texas has a simple and straightforward probate process, and not all assets have to pass through probate. Types of assets that can pass to a new owner without going through the probate process may include:
- Payable-on-death bank accounts or joint with right of survivorship bank accounts
- Proceeds from a life insurance policy
- Retirement accounts and many times of investment accounts
- Survivor’s benefits from an annuity
Other assets will need to go through probate, which includes real estate, mineral interests, stock, notes receivable and personal property.
Types of Probate in Texas
There is more than one type of probate in Texas: independent administration of estates and dependent administration of estates.
Of the two types of probate, independent administration is the simpler and cheaper process. The process is simpler, in part, because the independent administrator will be able to take many actions to settle the estate without the permission of the court, such as distributing assets to beneficiaries. On the contrary, a dependent administration requires more court approval of almost every action by the administrator. Dependent administration is much less common than independent administration. One easy way to avoid the time and expenses of a dependent administration is to ensure your will is prepared by an attorney.
Probating a Will in Texas
If a person dies with a will in Texas, the will must be submitted to the court and determined to be valid. The process includes the following:
- Waiting period. Before there can be a hearing on the probate application, there is a mandatory posting and waiting period that must elapse.
- Hearing before a probate judge. At the end of the waiting period, a probate judge will conduct a hearing. During the hearing, the judge will:
- Recognize the passing of the decedent
- The jurisdiction of the court
- The qualifications of the person applying to serve as the executor of the estate
- The validity of the will, including that the will was valid at the time of the decedent's death
- After the personal representative is appointed by the court, an inventory of the estate assets will have to be prepared.
Probating an Estate Without a Will in Texas
When someone dies without a will, the estate will be subject to intestacy laws, mentioned above. Even though there is not a will, the estate will still need to go through probate and heirship will need to be determined. The process includes:
- Determination of heirship. If someone dies without a will, the first step in the probate process will be determining the decedent’s rightful heirs and beneficiaries for the purpose of inheritance through intestate succession. This is a formal process through the court.
- Appointment of Administratory. The court will appoint an administrator of the estate. The administrator will either be a dependent administrator or an independent administrator. The law determines the order of priority on which family member may be entitled to serve as the administrator.
- Notifying creditors and resolving disputes. One important part of the probate process is making sure that any creditors are notified of the decedent’s death, and that any disputes—between creditors or other parties, such as beneficiaries—are resolved.
- Distribution of assets. Once any disputes have been resolved and creditors have been paid, the remaining assets will be distributed to heirs per intestacy laws.
If you need help with a will, trust, or probate matter, call our experienced Lake Jackson and Pearland estate planning lawyers today
At The Cordoba Law Firm PLLC, our Pearland and Lake Jackson wills, trusts & probate attorneys are compassionate, yet aggressive, and will ensure that your legal rights are protected, whether you are drafting a will, a trust instrument, or are litigating against family members. To schedule a consultation with our attorneys, call 979-297-2854 or contact us online. We serve clients throughout Brazoria County including Pearland, Lake Jackson, Alvin, Angleton, Brazoria, Clute, Danbury, Freeport, Oyster Creek, Sweeny, West Columbia, Galveston County, Fort Bend County and Matagorda County.