Your Austin, Texas Probate Lawyers
Probate can quickly become overwhelming if you’re unfamiliar with the process.
Gathering documents, filing paperwork, and attending court hearings is probably the last thing you want to do after losing a loved one.
A probate attorney in Austin from Massingill can help.
What Is Probate?
Probate is the legal process of settling the affairs of someone who passed away (the decedent).
By definition, probate is the judicial procedure of establishing that a will is authentic, but there’s a lot more to it.
Not all probate processes look the same, but, in general, it involves the following tasks.
Locate Estate Planning Documents
Knowing if the decedent has a will or trust impacts the probate proceeding. A will gives the probate judge instructions on whom to appoint as personal representatives and how to distribute assets and property.
Notify Beneficiaries and Creditors
Beneficiaries of the will and creditors of the estate must be notified of the probate proceeding. This notification gives them the opportunity to file a claim.
Distribute Remaining Property to the Beneficiaries
Once all the estate’s debts are paid and disputes are resolved, any remaining assets are distributed to heirs and beneficiaries.
As you can see, probate is a multi-step process that has room for errors at every step. With the help of an Austin probate lawyer from Massingill, we can help you avoid costly mistakes.
File a Petition to Probate the Estate
To initiate the probate proceeding, you must file a petition with the local probate court in the county of the decedent’s residence.
Identify and Value the Decedent’s Assets
The personal representative must provide a detailed inventory of all the estate property within 90 days of being appointed. A list of claims (or debts) owed by the estate must also be included.
File Final Tax Returns
Even at death, you can’t escape taxes. The personal representative is responsible for filing the decedent’s final income tax return and an estate tax return, if applicable.
Attend a Hearing in Probate Court
At the initial probate hearing, a judge reviews the filed documents and does the following:
- Confirms the decedent’s death,
- Determines if the person or entity applying to be the personal representative is fit to serve the role,
- Verifies the will’s validity and admits it to probate,
- Identifies beneficiaries, heirs, and creditors of the estate, and
- Appoints a personal representative.
Depending on the complexity of the estate, there may be multiple hearings. For example, if a creditor or heir makes a claim against the estate, a separate hearing will take place where the judge will issue a ruling on that claim.
Is Probate Always Necessary?
No. Only estates with certain assets require probate.
In the world of estate administration, assets are divided into two categories: probate assets and non-probate assets.
Probate assets are usually those titled solely in the decedent’s name.
If an estate has probate assets, it must go through the probate process so that the property can be transferred to the rightful heirs and beneficiaries.
Non-probate assets are assets that have a joint owner or a beneficiary designation.
For example, retirement accounts, life insurance policies, property owned as joint tenants with rights of survivorship, and POD (payable-on-death) bank accounts are all non-probate assets.
They automatically transfer to the co-owner or designated beneficiary when the decedent passes away.
In reality, many valuable assets that in the past would have been passed on through inheritance are now transferred as non-probate assets. An estate planning attorney can help you sort through all this.
Do All Wills Have to Go Through a Probate Process?
There’s no legal requirement to probate a will in Texas.
However, if the will isn’t admitted to probate, heirs and beneficiaries can’t inherit what’s been left to them under the will.
You have four years from the date of the decedent’s death to admit the will to probate. There are a few limited exceptions to this rule.
If you miss the deadline, the court treats the estate as if the decedent died without a will (also known as dying intestate) and distributes the estate according to Texas’s laws of intestate succession.
Under the law, certain family members inherit the property based on their relationship to the decedent. For example, spouses inherit first, then children, then parents, and so on.
Is There a Penalty for Not Probating a Will?
No. You won’t face jail time or pay a fine for not probating a will.
How Long Does It Take to Probate an Estate?
Probate can take anywhere from a few months to several years, depending on how complex the estate is and the court’s schedule.
A probate attorney in Austin, Texas, can expedite the process by completing and filing all necessary paperwork, communicating with the court, and meeting deadlines.
Is Probate Expensive in Texas?
Probate can be expensive, but it depends on how difficult it is to administer the estate.
Some of the costs that go into probate are court filing fees, notification fees, the personal representative’s compensation, and fees for professional services (e.g., accountants, lawyers, appraisers, etc.).
Here are some things that can impact the cost of probating an estate in Texas:
- The value of the estate,
- The type of assets in the estate,
- The professionals you hire,
- The decedent’s estate planning documents, and
- If someone sues the estate.
The estate pays all probate costs, including attorney fees.
How Much Do Probate Lawyers Cost in Texas?
The cost to hire probate lawyers in Austin, TX, depends on different factors, such as the complexity of the estate, the attorney’s experience, and how the lawyer charges for their services.
For example, if the decedent died owning a business or has a significant estate tax bill, you’ll need a more experienced attorney to assist with probate. Thus, your attorney fees will be higher.
At Massingill, we charge a flat fee for our services, so you aren’t guessing what the bill may be.
Does Texas Require an Attorney for Probate?
In most cases, Texas does require that you have an attorney for probate.
If you are the estate’s personal representative, you are representing the rights of beneficiaries and creditors.
You have a fiduciary duty to act in their best interest. Under Texas law, only licensed attorneys can represent third parties.
Failing to get legal counsel constitutes the unauthorized practice of law, which is a Class A misdemeanor.
There are times when you can go through probate without an Austin probate attorney. If you’re representing only yourself, you don’t need a lawyer.
This happens when you’re the sole beneficiary of the estate and there are no debts against the estate.
How Can a Probate Lawyer Help?
Probate lawyers can assist with anything from general probate matters, such as filing petitions, to complex estate litigation cases.
Having a lawyer involved in the probate process can also help ease tensions among family members.
After losing a loved one, emotions are strong, and deep-rooted feelings tend to rear their heads.
An attorney can help prevent conflicts by explaining the probate process and everyone’s legal rights.
Are There Ways to Avoid Probate?
With proper estate planning, it’s possible to bypass probate completely, saving your family time, money, and hassle.
However, the legwork must be done ahead of time to remove assets from the estate.
Even if the estate does need to go through probate, there are simplified versions of the process in Texas.
For example, you can file a Small Estate Affidavit if the estate’s value is $75,000 or less, the decedent died without a will, and there’s no real property in the estate.
Probate as a Muniment of Title is another simpler form of probate that’s available for certain estates.
A probate attorney in Austin, TX, can help you determine if the estate qualifies for one of the alternative probate proceedings.
How Do I Get Started?
If you need to probate an estate in Texas, start by reaching out to a probate lawyer in Austin, TX.
Rather than trying to decipher the legal jargon and fill out the proper forms by yourself, have a lawyer do the work for you. This can save you time and money in the end.
When you work with an Austin probate attorney from Massingill, they start by reviewing the decedent’s estate planning documents, assets, and debts to determine if probate is even necessary.
From there, our attorneys can help with filing the probate petition, notifying creditors and beneficiaries, creating an inventory of assets, and preparing income and estate tax returns.
Contact the Probate Lawyers in Austin, TX, at Massingill
Probate can be complicated, but with the help of a probate attorney in Austin from our firm, it doesn’t have to be.
We help simplify the process and prepare you for what’s ahead.
We’re a collaborative group of attorneys in Austin, Texas, with over 150 5-star Google reviews.
Let us know how we can help.