What will happen to your property – your house, your investments, and your belongings – after you die? Will it go to the people and causes you care about, or will it be distributed by the government?

Estate planning is one of the most difficult, yet one of the most important tasks that you will face in your lifetime. By carefully drafting and maintaining the proper documents, you can decide exactly what happens to your property in the event of your death.

If you do not have first-hand experience with estate law, or even if you do, attempting to handle these complex issues for your own family can cause unnecessary stress and heartache. A qualified Austin estate planning lawyer can help you avoid the possibility of having the estate tied up in court for months or years, or even having to pay fees and taxes that could possibly be avoided with the help of a guiding hand.

Most legal matters include:

Probate Litigation
Estate Planning
Trusts
Wills
Living Wills
Contested Wills
Heirships
Small Estates

Probate lawyer in Austin:
The Butler Firm, PLLC, is a native Texas law office, a boutique law firm with two offices in Austin and Round Rock. Our small group of dedicated probate lawyers and attorneys help those who have lost a loved one navigate the Texas probate system with ease and minimal financial strain. Additionally, our Austin and Round Rock probate lawyers assist their clients by drafting Wills and providing estate planning assistance.

Guardianships can be broken down into Minor and Incompetent Guardianships. Either situation, deemed necessary by a court appointed expert or doctor, can require a Guardian in order to protect a loved one both physically and financially. A Guardian is appointed to assume the responsibilities to provide care to a deemed ward or the estate of a deemed adult incapable of caring for himself or herself. Generally the process begins with an application for the Guardianship through the proper court. Guardianship applications can be completed by a Probate Lawyer in Austin TX, or other attorney familiar with a specific court jurisdiction. If necessary, the matter can be deemed an emergency, thereby deciding the matter within a 24 hour period in most cases. Otherwise the procedure follows the court determined process of determining the proper person so serve as the Guardian. The prospective ward is evaluated by properly qualified or court appointed professional to determine the ward’s incapability of caring either physically and/or financially for themselves.

Guardians can also be appointed of either the Person, providing only food, clothing and shelter and caring for the physical needs of the ward and/or appointed as Guardian of the Estate. Guardians of an Estate would ensure the financial interests of the ward were recognized. Probate Attorneys have experience in maintaining the required documents for accounting purposes and submitting annually documents indicating the activity of Estate of the ward.

The Court alone can approve financial expenditures on behalf of a ward upon the request of the Guardian, in writing and following proper procedure. The Court also does not allow Guardians to benefit from their services to the ward. Guardianship matters are reviewed on a regular basis and can be terminated upon professional and Court approval.

The biggest difference between an independent or dependent administrator is the fact that a dependent administrator must receive the approval of the court for almost all of the actions they perform. The must receive approval for:

Payment of fees relating to professional services required for the probate of the will including accountants and attorneys

• The sale of any real estate
• The sale of any personal property
• The sale of assets such as cars
• The repayment of debts owed by the deceased
• The payment of expenses due the administrator during the course of the probate period.

A dependent administrator must petition the court, in writing, to receive approval to perform any of these tasks.

Many people like the fact that dependent administrators must be bonded. A bond is basically insurance that the administrator will perform their duties honestly and ethically. They must pay a bonding company to provide the insurance for them. This is especially useful in cases where the estate is particularly large or involves a large amount of assets.

Another benefit of the dependent administration is protection in the case of estates that involve heirs that are likely to argue or fight over assets and debts. Because the court approves each step of the process, a dependent administrator can typically avoid future legal action against the estate.

In cases where there is a large amount of debt, the dependent administrator has a very specific set of guidelines governing how debts are repaid. Creditors must carefully apply for repayment of the monies owed to them. They must fill out specific forms; provide information and file within a specific time frame.

While a dependent administration must be requested within the allotted four year time period, there is an additional time constraint placed on them. Even if the estate is settled, the estate must be remain open. In many cases it makes the process longer than an independent process would be.

Dependent administrators are also bound by accounting requirements. They must submit, on a yearly basis, a complete accounting of the estate. This includes information on monies earned by the estate through interest or the sale of assets as well as any expenses paid, either to the administrator or professional fees such as accountants, attorney or legal fees. This accounting must also be completed at the end of the probate. Information must also be provided regarding outstanding debts and assets.

At the end of the day, dependent administration tends to offer the estate a higher degree of protection as opposed to an independent administration. Unfortunately it can also be a much longer process. Consult a probate attorney to determine which will work best for your particular case.

When selecting an executor, you must carefully consider your options. You want to choose someone who is qualified to deal with the complexities of your will and estate. You will want someone you trust. The person you should select should be ethical, responsible, mature and trustworthy. Some good suggestions for qualified executors include accountants, trust officers and lawyers. Typically you will appoint only one executor. In some rare cases two are appointed with the understanding that the second will take over the duties if the first executor for some reason cannot complete their job. It is possible that your choice of executor will be overturned if the court feels the person cannot adequately perform their duties or if they are a convicted felon.

After your death, your executor will perform several vital functions on your behalf. These include:

• Filing your will with the state probate court as appropriate
• Petitioning the court for letters stating that they have been appointed, legally, as the executor of the estate
• Request and receive official death certificate copies for use during the probate period
• Completing a full and honest accounting and inventory of the assets of the estate. This will include bank accounts, car titles, deeds, stock information, brokerage accounts and other assets
• Completing the process of re-titling, if required
• Protect and manage the assets of your estate
• Repay any debts that are outstanding at the time of death
• File insurance claim benefits on behalf of beneficiary or heirs
• Account for any monies owed to the estate
• Hire lawyers, accountants or other professionals if warranted
• Keep a complete accounting of all actions performed on behalf of the estate
• Complete and file outstanding income taxes
• Complete the probate process and close out the estate upon completion of duties

In certain cases, it may be necessary to remove an appointed executor. Heirs or beneficiaries may request the executor be removed if the executor has failed in their duties or if they have an interest in the estate themselves.

It is true that executors are allowed compensation for their services. These services are typically determined by a fee schedule provided by the state.

If you are considering appointing a trustee to handle your estate after your death, be sure to consider the matter carefully. It is a good idea to discuss the matter with your attorney. They can advise you on your decision and ensure the proper paperwork is completed to ensure your wishes are carried out.

Executors can be appointed independent in two different ways.

• The deceased provided a will which states, specifically, that the executor appointed will work as an independent executor
• If the deceased did not have a will but the beneficiaries or heirs agree unanimously that the appointed executor should work as an independent administrator.

Using an independent administrator during the probate process is beneficial in several ways. Most importantly, the administrator does not have to apply to the court for approval of all of the actions he performs on behalf of the estate. An independent administrator is not required to post a bond, while a dependent administrator is. Finally, there are often additional attorney and court fees associated with a dependent administrator that may be avoided by working with an independent one.

In effect, an independent administrator will perform the same basic functions of any probate executor. They will collect the assets of the estate, liquidate them as needed to pay off remaining debt and divide the remaining assets among the heirs. If the deceased left no will, the independent executor will take several additional steps. This includes posting a public notice for potential creditors and completing an inventory for the court system.

As a rule, you have four years from the time of death to probate a will or request an executor be appointed. In very rare cases the court can make exceptions to this rule. It is advisable to request a probate as soon as possible after a death occurs whether or not the deceased left a will.

There are a few cases in which it is not advisable to request an independent administrator. Remember that the rules that govern how an executor repays creditors are different for dependent and independent administrators. If there are exceptionally large amounts of debts, it may be better to work with a dependent administrator.

While many courts prefer that executor be independent administrators, in some cases an executor may choose to be appointed dependent. This is especially true if the heirs are likely to fight or make matters more difficult. Because the dependent administrator must receive court approval for each action, they find there is built in protection against future arguments.

Determining which type of executor will work best for your particular situation is a personal choice. It is often advisable to work closely with a qualified probate attorney to ensure that the probate process goes as smoothly as possible. An independent administrator may be the ideal solution for your will.

This type of probate is appropriate in cases where the deceased has left a Last Will and Testament and when there are not any debts that are unsecured by real estate. This type of probate cannot be used in cases where there must be an administrator who can settle the estate by gathering a list of assets, liquidating them as needed, paying off debts and creditors and finally distributing the remainder of the estate to the heirs or beneficiaries.

This is an ideal form of probate for one main reason: it is the shortest way to probate the will. Unfortunately, if there are investments such as corporate securities, where out of state companies or agents must be involved, they often do not understand the unique form of probate that is Muniment of title. In cases where it is obvious that out of state entities must be involved it is not recommended that this form of probate be used.

The process involved in Muniment of Title is quite simple. First an Application must be filled out. This application will be ‘sworn to by the requestor. A filling fee and the original will must be included with the application. The courthouse must receive notice of the application 10 days before the Monday during the week the hearing will be heard. In certain cases, heirs must be informed as well. The hearing will include several key aspects. These include:

• Proof that the death occurred as stated and information on the cause
• A witness must officially ‘sign’ attesting to the information above. This is referred to as “Proof of Death and Other Facts”
• The will must be proved. If it is not self-proving, witnesses will be required to prove it
• The judge will order the will into probate under Muniment of Title.

At this point, the order will be filed as needed. Typically this includes each county or area in which the estate owned real estate. While an inventory is not required under Muniment of Title, it is commonly requested by the judge. Additionally, it may be necessary to submit a written statement that any property has been legally transferred to the appropriate beneficiary or heir.

To start the process the original will, original death certificate and the applicable filing fees are needed. To determine if the Muniment of Title is the appropriate form of probate for your particular situation, it is important you meet with a qualified attorney. They can advise you as to the form of probate needed and assist you with the sometimes difficult and painful process of probate.

Simply put, probate is the process of ‘proving’ a will in court. Through the process of probate, a deceased person’s property and assets is legally transferred to their heirs or beneficiaries. Typical items covered by probate include property, taxes, debts and fees, even the probate fees. Any monies owed are paid out while the remaining funds and assets are distributed to the proper heirs.

In the state of Texas, wills must enter into probate within four years of death. There are few exceptions to this rule, but they are very strict. It is sometimes not necessary to probate a will. This is especially true if the property and assets of the deceased were of little monetary value. In most cases heirs or beneficiaries opt to probate a will if there is a great deal of property or other assets to be distributed or if there is a significant amount of debt owed by the deceased.

The actual process of probate is not at all difficult. In fact, there are four basic steps to a successful probate:

1. Application: the application must be properly filled out and filed with the probate court
2. Hearing: A hearing will be scheduled during which time the will will be proved and an executor will be appointed
3. Notice: A notice must be posted in a local newspaper to alert creditors of the estate.
4. Inventory: a full and complete inventory of the assets and property of the deceased must be completed.

In most cases, probate is relatively inexpensive, costing approximately $2000.00. This fee may be higher if the will is particular complex or involves multiple parties or large amounts of debts.

If the deceased did not leave a will, it is still possible to file probate. A special set of procedures, known as the Determination of Heirship, must be followed. This process will help the courts determine who the legal heirs to the estate are. The four-year limitation is still valid in this case.

If probate is not filed within the allotted four years, the petitioner must follow a more strident and complex procedure in order to probate. It is, however, possible under certain circumstances to probate a will even after the given four years.

Except in the cases of simple estates will little assets, probate can prove to be time consuming and cumbersome. It is often better to work directly with an attorney who specializes in probate issues. They can assist you with the necessary paperwork and hearings and ensure that your case moves forward to a successful completion.

Muniment of Title:

This probate process is unique – it is only available in Texas. Muniment of Title is a much simpler and streamlined way to probate. Among other things, it does not require an executor or administer be appointed. It is also the only probate process that can be used if the deceased passed away more than four years ago.

Unfortunately, because it is unique to Texas, many probate attorneys do not fully understand the complexities of the law. For the most part, it is the ideal process to use for estates that are entirely comprised of real estate. Any estate that involves brokerage accounts or bank accounts should avoid the Muniment of Title because the attorneys for those entities are most likely from other states and not fully aware of the specifics of this type of probate. Finally, the Muniment of Title probate cannot be used if the deceased left no will.

Dependent Administration

Unless otherwise arranged, all probate cases in Texas default to Dependent Administration. This type of probate process requires the appointment of an executor or administrator. They will contact the court and receive permission to liquidate assets and pay off creditors. This is typically a simple matter of a written request with applicable payment attached.

It is more difficult for creditors to work with a Dependent Administration (as opposed to an Independent Administration). They must adhere to a strict code of procedure in order to be reimbursed for the debt they are owed.

Dependent Administrators are required to be bonded.

Independent Administration

As with the Muniment of Title, in Texas, an Independent Administration is different than any other state in the union. Simply put, an independent administrator can, for the most part, conduct the business of the estate without consent of the court. Unlike a Dependent Administration process, under this form of probate, many of the assets can be sold without consent. This is also true of much of the debt load carried by the estate.

It is important to note that an independent administrator is not required to be bonded, which can pose some risk to the estate if an unscrupulous administrator is appointed.

Creditors prefer to work with independent administrators. The laws governing the repayment of debts under this type of probate process are not as strident as the Dependent Administration probate laws.

It may be difficult to determine yourself which type of probate is applicable to your particular situation. Be sure to contact a qualified probate attorney in order to determine the correct course of action for your case.

2) A County Clerk issues a citation and a notice is posted at the courthouse that an Application for Probate of Will has been received. After notice has been posted for the requisite time the Probate Attorney will request a hearing.

3) At the hearing the Probate Lawyer will prove up the facts of death. If the will is self-proven, being signed and notarized by witnesses, only the executor will be required to testify. If the will is not self-proven, a witness to the signing of the will must testify at the hearing.

4) After the judge approves the Application for Probate of Will, the executor a takes the Oath of Executor and the Letters Testamentary are requested. Letters Testamentary are the legal documents allowing the executor to act on behalf of the estate.

5) Within 30 days the Probate Attorney will publish with the local newspaper a notice to creditors. The Probate Lawyer will also within 60 days give send notice to creditors that Letters Testamentary have been issued. If the Probate Lawyer receives a claim by a creditor the executor must either reject or accept it within 30 days.

6) Within 60 days a letter drafted by the Probate Lawyer is delivered to the beneficiaries. The executor through the Probate Attorney will then file a sworn affidavit swearing the beneficiaries under the Will have been notified.

7) Within 90 days the Probate Lawyer with guidance from the executor will prepare an Inventory, Appraisement and List of Claims that lists the assets of and claims against the estate.

With assistance from the Probate Attorney the executor disburses the estate as provided for in the will. Subsequently, proper notices are filed in the Deed Records for real estate and new titles are filed for cars, boats and other titled property.

To speak to an attorney about your matter, please call us now at 512-322-5367.

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Below is our estimates for legal fees. Of course, every situation is independently unique and actual legal fees could be dramatically increased including but not limited to situations where there are contests to the Will or there is a complex estate involved. The estimates below do not include fees charged by the Courts which typically range from $200 to $250.

PROBATE OF ESTATES WITH A WILL IN TEXAS

Probate of Will as Muniment of Title ($1,200-$1,500)

Estates may qualify for this less expensive procedure if there is a properly drafted will and the estate has no debts other than mortgages on real estate.

Independent Administration ($1,500-$2,200)

If there are existing debts the Will most likely be probated as an Independent Administration.

PROBATE OF ESTATES WITHOUT A WILL IN TEXAS

Heirship Proceeding (Minimum of $3,000)

If the estate is worth more than $50,000 (not including the homestead and certain non-probate assets), it may be necessary for a judge to determine who the heirs are. The judge may appoint an “attorney ad litem” to represent the interests of potential or “unknown” heirs. Legal fees are at a minimum of $3,000 but can be much more. The exact cost depends on the number of heirs and the complexity of the estate, but is generally more expensive than probating a will. Furthermore, if property passes to minor children, it may be necessary to establish a guardianship, which can be very costly.

PROBATE OF SMALL ESTATES IN TEXAS

Small Estate Affidavit ($500-$1,000) If the estate is worth less than $50,000 (not including the homestead and certain non-probate assets), the estate may qualify for this procedure. The cost depends on the number of heirs and the difficulty in reaching them, but is generally much less expensive than an heirship proceeding. However, if property passes to minor children, it may be necessary to establish a guardianship, which can be very costly.

To speak to an attorney about your matter, please call us now at 512-322-5367.