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PROBATE

What Is It?

Probate is a court proceeding brought to deal with those assets that a deceased person owned at the time of death and which did not pass to others through some non-judicial or informal process.  It is not a “do it yourself” process. 

Typical assets that cannot be transferred without probate are real property, mineral interests, and bank, credit union, and brokerage accounts that have not been designated “joint and survivor” or “transfer on death.” 

Probate has nothing to do with taxes.  Probate can be required whether the person died with a valid will (called “testate”) or without a valid will (called “intestate”).

The two main purposes of probate are to:

• Change the title of assets that were owned by a deceased person to his or her devisees or heirs; and

• Give the deceased person’s creditors an opportunity to make their claims against the estate. 

Disadvantages of Probate

Although probate is easier in Texas than in most other states, it does have many and major disadvantages. 

First, probate can be a long and painstaking process.  A probate cases usually takes from three months to two years from start to finish.  There are many probate cases that take even longer.  As with all court proceedings, it cannot be hurried and has its own required formalities. 

Another major disadvantage of probate is that it is public.  In Texas, the law requires that the probate court records list out your assets and state their value.  Those records, which include your will, are open to the public.  The records in Travis, Williamson, and other counties are available on the internet.  More counties are making their probate records all the time.  Because Texas is a community property state, often the probate record shows all of the assets of a married couple. 

This leaves the surviving spouse or other heirs vulnerable to financial scam artists who have unrestricted access to the amount and types of the surviving spouse’s or other beneficiaries’ assets.  

A third major disadvantage of probate is that the courts in one state have no authority over real property in another state.  Therefore, probate will have to be done in every state where the deceased owned real estate at the time of death unless it was passed by a survivorship right. 

Texas led the nation in establishing simplified probate procedures, but unless the will complies with certain Texas laws, those simplified procedures may not be available.  Texas allows you to waive the executor’s bond, but unless your will is carefully written will, the probate court may require that your executor or administrator post a financial bond to ensure that she fulfills her duties.  Many people named executor cannot get such a bond. 

In some states, like California, the law sets the minimum fees that attorneys and executors can charge and they are a percentage of the gross estate.  In California, probate fees can range from 4% to 10% of your family’s gross estate.  Good news!  Texas allows an attorney to charge any reasonable fee, without a minimum limitation, to probate a person’s estate.  The average attorney’s fee for a probate in Texas urban areas is 3.5% of the gross estate.  Because of our efficient systems, our fees are typically much less.  As with all estate planning and administration matters that we accept, we will have an agreement with our client on a flat fee before we begin the work. 

If you engage us to assist with the administration of your loved one’s estate, we will meet with you to gather information.  You will bring us the estate asset information and we will use it to prepare a comprehensive plan for the administration of the estate, including probate if that is unavoidable.  We also will prepare a comprehensive estate administration plan that will guide you along every step of the way so you will never feel lost. 

We stand ready to assist you with the administration of your loved one’s estate. 

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Brown & Lacallade, P.C.
Attorneys at Law

Austin Office

Cielo Center, Bldg. 3, Ste. 400
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(P.O. Box 1956, Kingsland, TX 78639)
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info@brolaclaw.com

Legal Disclaimer: The legal information presented on this web site is general in nature and applies only to matters governed by the laws of the State of Texas. Nothing on this web site is intended to be or may be construed to be legal advice. No attorney client relationship will exist with Brown & Lacallade, P.C. unless we so agree in writing after personal consultation. Please contact us for a consultation on your particular legal matter. This web site is not intended to and does not solicit clients for representation in matters outside of the state of Texas.