After a death, the management and transfer of assets is handled through an estate settlement process. This process varies widely, depending on the nature of the estate and the type of planning done prior to death. This may involve probate, estate administration, and/or trust administration. With a good estate plan, the process should be straightforward. Without good planning, the process may be more complicated.
Probate is a court proceeding used to transfer assets otherwise “trapped” in the name of a deceased person. The Court may validate a will, appoint an executor, and issue letters testamentary. The executor can then pay creditors and transfer assets to the beneficiaries under the terms of the will. A streamlined process called probate as a muniment of title may be used in Texas for simpler estates with no creditors.
We also handle more complicated probate matters. For example, additional court action may be needed if there is no will, or if the will is insufficient (such as if assets were left outright to a beneficiary who needs a special needs trust to maintain government benefits). A family settlement agreement may be utilized if you wish to alter the terms of the will. A disclaimer can be used if you would prefer to decline an inheritance, so that it passes instead to your children or other contingent beneficiaries (for instance, if you have creditor or estate tax concerns). We are not litigators. We refer out contested or litigated probate matters.
If all assets pass through beneficiary designations or deeds, then probate may not be necessary at all. Similarly, probate may be avoided if all assets were held in trust prior to death, or pass to a trust by beneficiary designation.
Even when there is no probate, we can help you with the settlement of a trust or estate. If there was a living trust, we can help you understand the terms of the trust and the next steps. A trust may terminate at death, with all assets distributed outright to the beneficiaries, or it may continue for the beneficiaries with a new trustee, or split out into multiple trusts. We can advise you on your options and appropriately document the settlement of the trust.
We can help you determine whether an estate tax return will be required, and we can prepare that return for you, if needed.
If there was no trust or will, then the probate assets will pass to family members according to State law. There are various procedures for transferring assets without a will, ranging from a simple heirship affidavit filed in the deed records to a probate proceeding to determine heirship and appoint an estate administrator.
Every situation is unique, and we are here to help you through the probate and estate settlement process with knowledge and compassion.