San Antonio Probate Attorney

Practice Areas Probate

If you have ever experienced the loss of a family member, you may be familiar with the concept of probate. Probate is the legal process by which a person’s estate is settled after they die. This includes identifying all of the estate assets, paying off any outstanding debts or claims from creditors, and distributing the remaining assets to their beneficiaries according to their will or, if there is no will, to their heirs according to the laws of intestate succession as described in the Texas Estates Code.

In Texas, probate is handled by the county or probate court where the decedent lived at the time of their death. The process can take several months to several years to complete, depending on the complexity of the estate and any legal issues that arise.

Without a proper estate plan, these assets may have to go through probate before they can be distributed to their beneficiaries or heirs.

While probate may seem simple, it can be very complex, with many specific requirements and regulations that must be followed. A San Antonio probate attorney can help you understand what actions need to be taken to stay in compliance with the law. Additionally, depending on the decedent’s particular circumstances, there are several different types of probate proceedings that may occur.

Understanding Probate Options

It is easy to think that probate is simply the reading and following of a will. But in fact, there is a wide range of available probate proceedings and alternatives to probate that include:

The answers to two questions will determine which probate proceedings or alternatives to probate are appropriate for a given estate. First, did the decedent have a valid will? And second, is there a need for an administration of the decedent’s estate?

First Ask: Does the Decedent Have a Valid Will?

A person who dies leaving a valid will is said to have died “testate.” In cases of testate decedents, it is necessary to apply to have their will admitted to probate.

The primary function of a will is to control the distribution of assets after the death of the person making the will. In a well-drafted will, therefore, the identity of the beneficiaries who are entitled to receive the decedent’s assets is not in question; rather, they are clearly described within the four corners of the will document. A will does not become effective, however, until an appropriate legal authority signs an order admitting the will to probate after the death of the decedent. In Texas, this legal authority is ordinarily the county court, county court at law, or probate court in the county in which the decedent resided at the time of their death.

Prior to admitting the will to probate, however, the court must make a determination as to the validity of the will; specifically, that it conforms to the requirements outlined in the Texas Estates Code. When someone refers to the “probate of a will,” they are referring to the legal process of having the will validated by a court of law so that the assets of the estate can be distributed to the beneficiaries named in the will.

A will admitted to probate without having an executor or administrator appointed for the estate is referred to as a muniment of title and is usually only appropriate in small, simple estates where the decedent did not have any debt or out-of-state assets. A muniment of title can be used in limited circumstances to transfer property owned by the decedent to the beneficiaries named in the will.

Judicial Determination of Heirship Without A Will

A person who dies without a valid will is said to have died “intestate.”With no valid will to direct how the decedent’s assets should be distributed, the laws of intestate succession take over. In Texas, the persons entitled to receive the decedent’s property are called “heirs,” and the rules governing heirs are provided in the Texas Estates Code. The determination of a decedent’s heirs and the shares of the estate to which they are entitled is the primary function of a judicial determination of heirship.

A judicial proceeding to determine heirship requires the production of evidence regarding the decedent’s family history and the identity of his or her heirs. This proceeding is significantly more complicated and time-consuming than the probate of a will, where the persons entitled to receive the decedent’s property are clearly spelled out on the document being probated.

The result of a judicial determination of heirship proceeding is the issuance of a document called a judgment declaring heirship, identifying the decedent’s heirs and the shares of the estate which each is entitled to receive. Like a muniment of title, a judgment declaring heirship can be used to transfer a decedent’s property to their heirs when estate administration is unnecessary.

In small, uncomplicated estates of intestate decedents, there are two alternatives to a judicial determination of heirship that may be appropriate in some circumstances: a small estate affidavit and an affidavit of heirship.

For estates with assets worth less than $75,000, a simplified probate proceeding known as a small estate affidavit can be used to obtain a court order similar to a judgment declaring heirship. Like a judgment declaring heirship, this order can be used to transfer a decedent’s property to the estate’s intestate heirs, but with the added benefit of not having to go through the full probate process. A small estate affidavit is a relatively simple probate procedure and is often attempted without the assistance of a San Antonio probate attorney.

In some instances, it may be unnecessary to go to probate court at all. For intestate estates consisting solely of real estate, for example, an affidavit of heirship may be recorded in the county deed records to transfer the property to the decedent’s heirs.

All of these processes can be complicated and emotionally charged. In the wake of the passing of a loved one, it is important to reach out to a San Antonio probate attorney to assist you in walking through the probate process, your options, and what you might be entitled to. At the Aldrich Law Firm, we frequently represent individuals in probate and can help answer any questions you may have.

Is There A Need For An Administration Of The Decedent’s Estate?

Even after determining if a will exists, the next question is whether administration of an estate is necessary. Administration of an estate involves appointing an executor or administrator to manage the estate and fulfill any outstanding duties or obligations. In Texas, administration of an estate may be necessary when any of the following situations are present:

There are outstanding debts or taxes owed by the estate that need to be paid.
The estate has assets that require legal authority to transfer, sell, or distribute, such as real property or financial accounts without a designated beneficiary.
To manage the affairs of an estate during the pendency of a will contest or other probate dispute.
The decedent’s estate has ongoing business interests that need to be managed or settled.

If administration is needed, then the application to probate a testate decedent’s will or application to determine an intestate decedent’s heirs will also include a request to appoint an executor or administrator.

If no administration of an estate is necessary, then obtaining a court order admitting a will to probate as a muniment of title in a testate estate or a judicial determination of heirship in an intestate estate should be sufficient to transfer the decedent’s property to the decedent’s beneficiaries or heirs.

It is important to work with an experienced San Antonio probate attorney to ensure that the estate is properly managed and that the executor or administrator fulfills their duties and obligations.

Who Can Be An Estate Administrator?

Being appointed as an executor or administrator to an estate is a significant responsibility. In this role, an individual has a fiduciary responsibility to represent the interests of beneficiaries and creditors who have a stake in the estate. While an estate executor does not have to be a lawyer, it can be helpful to have someone who has a background in the law or at least a willingness to learn about the responsibilities of the role.

There are several categories of individuals who cannot be estate administrators. These include: (1) incapacitated people; (2) felons; and (3) corporations that do not have an agent in Texas. Additionally, nonresidents of Texas typically cannot be administrators unless they appoint an agent who is a resident of Texas and can accept service of court documents on their behalf for proceedings related to the estate.

Why Work With An Attorney Who Understands Probate?

Probate proceedings can be highly charged and very emotional when the circumstances for inheritance are not clear. And they often occur at a time when family members are still dealing with the passing of a loved one and processing their own emotions. An experienced San Antonio probate attorney is a neutral third party in these situations who can help to mediate conflict between family members, reduce charged situations, and handle the deadlines and details of probate proceedings so that you have time to focus on your family and healing.

Probate attorneys also have the experience and ability to monitor ongoing probate proceedings to ensure that any executor or administrator of an estate is fulfilling their fiduciary obligations and promptly administering an estate. They can also assist beneficiaries in thinking through the legal and tax ramifications of receiving any assets from an estate. And, of course, a San Antonio probate attorney will guide and advise beneficiaries and interested parties in participating in probate, as well as filing relevant documents and managing interaction with the court.

Speak with a San Antonio Probate Attorney Today

To schedule a consultation to discuss your case with a San Antonio probate attorney at the Aldrich Law Firm, please call us today at (210) 399-3964 or send us a message by completing the intake form on our website.