Probate & Trust Administration
What is probate?
Probate is a court proceeding in which a judge orders that the Will of a decedent is truly the last wish or “will,” of the deceased person. To “probate” means to “prove”. Without a probate proceeding, it would be possible for people to advance forged or fraudulent documents, in an attempt to gain the property of a descendent. Consequently, the law deems it necessary for a judge to examine the Will of a decedent and determine that it is his or her Will, and thus, a binding document. In most cases, there is no contest or battle over whether the document offered is the last Will of the decedent and the probate process is simple. The judge in a probate proceeding also grants authority to the person named by the decedent as executor of his or her estate.
Why is it necessary?
Probate is necessary to pass title to a decedent’s property to those persons named as beneficiaries in his or her Will. Probate is also the process by which the affairs of a Decedent are wound up or concluded, which will involve the collection of his or her assets and the payment of his or her debts.
How can I avoid probate?
The law provides several tools that can be used, under proper circumstances, to eliminate the need for probate. It is important to understand, however, that in Texas our probate procedures, in most cases, are much less involved than the probate process in most other jurisdictions. This is true primarily because Texas law allows a decedent to name an “Independent Executor” of his or her estate. An “Executor” is a person appointed in the Will of a decedent to carry out the desires of the decedent as expressed in the Will and to wind up the decedent’s affairs. The word “Independent” basically means that the Executor or Executrix may act independently of the supervision of the Court except for the filing of the required Inventory, Appraisement and List of Claims for the decedent’s estate. If a person is not designated as an “Independent Executor”, virtually all of their duties and actions are subject to prior approval of the probate court, which can be a cumbersome and expensive process. The ability to probate a Will through an independent procedure will normally take less time and be less expensive than a probate that is court supervised.
What is a trust?
It is a “legal entity” which comes into existence after the lawyer drafts the Trust and it is signed by the individual who establishes it (the Trustor) and accepted by the person who will manage the Trust (the Trustee). Normally, while the Trustor is living, he also serves as Trustee of his own Trust. Title to assets must be conveyed into, or placed in, the Trust. At this point, the Trustee will manage the assets in his name as Trustee. On his death, it is not necessary to stop and probate in order to get the assets out of the Trust, but rather a Successor Trustee continue the Trust affairs as directed in the Trust. A Living Trust can revocable or irrevocable.
Testamentary Trusts are trusts that are created in an individual’s Last Will and Testament and are not funded until the Will is probated after your death. Probate is necessary in order to transfer title to assets to the Trust.
What is a Last Will and Testaments?
A Will is a legal document in which you describe who will own your property after your death. It also provides for the orderly passage of your property after your death. In your Will, you can provide for the appointment of an Independent Executor who, in Texas, operate independent of the Probate Court after a Will is admitted to probate and an Inventory has been filed. This makes probate in Texas very straightforward. You can also plan for contingencies, such as who will handle you property for your children’s benefit if they are minors when you die, and you can express your preference for a guardian of your minor children. Your will has no effect until it is admitted to probate after your death.
Living Trusts are designed to hold title to your assets while you are living and, at death, pass title to the assets as you direct in the Trust, without the necessity of probate.
A Guardianship is a court-supervised process involving the appointment of an individual (the guardian) to care for a person, manage his or her financial affairs, or both. In Texas, there are two types of guardianships: a guardianship of the person and a guardianship of the estate. A guardian may be appointed as guardian of the person or guardian of the estate, or both, of a proposed ward (the person subject to the guardianship). Guardianships involve the loss of rights and abilities to make important decisions by the proposed ward. Accordingly, Texas has strict requirements regarding proof of the proposed ward’s incapacity and exploration of less restrictive alternatives that must be met before a guardianship can be established.
Medicaid/Long Term Care Planning
The ever changing landscape of Medicaid eligibility requirements and benefits can be difficult to navigate. In a perfect world, planning for Medicaid or long term care occurs early on before the need arises, but we know this is not always the case. Situations can arise where actions are required to maintain Medicaid eligibility due to various circumstances sometimes outside of the client’s control. Regardless of the situation, our goal is to provide our clients with the legal advice needed to make informed decisions about their long term care and overall estate planning goals, but to also be available when quick action is required based on extenuating circumstances.