After Life Care – Texas Probate, Estate & Trust Administration
Probate and estate administration are the processes through which estate assets are transferred after death. Probate will be necessary if there are any assets in the name of the decedent which require a title transfer that cannot take place without court intervention. Probate can be “independent” or “dependent.” In an independent administration, the appointed independent executor manages assets, pays any debts, files required tax returns and various court documents, and distributes the estate assets. In a dependent administration, the probate judge must approve every detail of the estate administration.
Probate means, in essence establishing the validity of a Will the deceased may have had, determining the deceased’s “legal” heirs if there has been no estate planning, detailing the deceased’s probate estate (called the inventory), paying appropriate debts, and, finally, distributing the deceased’s property to the people entitled to receive it. In the right set of circumstances this may be a relatively straight-forward process; in others, unforeseen issues or a lack of pre-planning may create unanticipated problems.
Whatever the situation, at Texas Trust Law, we strive to provide the high quality legal counsel necessary to navigate the deceased’s family through this sometimes mysterious and often misunderstood process. As a Probate client, you also will receive our Surviving Texas Probate, which will be a very helpful, step-by-step guide for you.
If you have recently lost a loved one and do not know where to turn, be assured that we will help you in any way that we can to make your loss more bearable.
Probate Avoidance
- Joint Tenancy. Adding another person to your assets as a “joint tenant with rights of survivorship” will allow your property to pass to them upon your death without going through probate. There are pitfalls to this strategy, however, to include subjecting such assets to any claims (such as lawsuits) against the co-owner and making them available to the co-owner’s creditors — all while you are still alive and planning on using the assets yourself
- Beneficiary Designations. Texas allows Transfer on Death (TOD) or Pay on Death (POD) beneficiary designations to be added to bank accounts. Beneficiary designations like these are preferable to joint tenancy in that they allow you to transfer property only upon your death without giving away current ownership. One of the drawbacks, however, is that it can be difficult to obtain an equitable distribution of property among your heirs by utilizing beneficiary designations. Additionally, understand that if you have beneficiaries listed on your assets, those assets will be distributed upon your death to the listed beneficiaries, even if your last will and testament states otherwise.
- Revocable Living Trust. A Revocable Living Trust is a legal document that allows you to establish a separate entity (the trust) to “hold” legal title to your assets while you are alive, and to name trustees to manage those assets according to the trust terms. Typically, you serve as the trustee while you are alive, managing your assets for your own benefit. Upon your disability or death, the trust terms appoint your successor trustee who then continues to manage — or distribute — the assets held in trust. A properly drafted trust can accomplish many goals, including guardianship and probate avoidance for your estate and bloodline, marital and creditor protection for your children.
Texas Estate and Trust Administration
A properly drafted and funded trust will generally avoid probate. The trust need not be filed with the probate court. Nonetheless, there are still steps necessary to administer the trust: beneficiaries must be contacted; assets must be gathered, valued and managed; potential creditors must be notified; debts, taxes and final expenses must be paid; and, ultimately, any remaining income and assets must be distributed in compliance with the trust terms.
Successor trustees often lack the time, resources or knowledge to personally administer the trust, and therefore may call upon legal, accounting and investment professionals for assistance. Oftentimes, a corporate fiduciary (e.g., a trust company) is an excellent alternative to relying solely on busy family members or friends to serve as trustee. We can help your successor trustee(s) deal with the complexities of administering your trust. Please call our office and we will be happy to schedule a consultation, whether or not our office has drafted the original trust.
Six Rules of Survival for Surviving Spouses
Rule #1: Do not make any major discretionary expenditures for a year. Certainly, there may be some big-ticket items you have to spend money on – a new roof for your home for example. Otherwise, delay spending money on all major non-essentials for now.
Rule #2: Stay in your current home as long as it is practical. Give yourself plenty of time to figure out where you want to live – there or somewhere else. The decision you make today about where you will live could be very different from the decision you might make a year from now. Staying in your current home where you are surrounded by familiar things may be comforting at this stage in your life, and it may even make it easier for you to cope with your loss. Following our advice is especially important if the real estate market in your area is currently depressed. Waiting to sell until the market improves could mean that you net significantly more from a sale.
Rule #3: Take care of yourself. For example, get a physical if you haven’t had one recently, join a gym, go for walks, spend time with friends, take a class, meditate, and so forth. Staying healthy and active will help ease the sadness you are feeling and help alleviate any stress you may be experiencing due to your loss. Remind yourself that although you have suffered a major loss, your life is not over – you are where countless other people before you have been – starting a new phase in your life.
Rule #4: If your spouse was worth a significant amount of money – or even if you are left with a relatively small amount – close family members, relatives with whom you rarely communicate and even long-lost friends may ask you for financial aid, possibly because they view what you’ve inherited as “found money.” They may even try to pressure you into sharing your money with them. However, do not loan any money, give away any money, or make any promises to do so in the future. There will be plenty of time for generosity later, assuming that you can afford to be generous with your money.
Rule #5: If you are having a difficult time coping with your loss, consider talking with a trained and licensed grief counselor or therapist and/or joining a bereavement support group. Many churches and synagogues have these groups. You may find it healing to share your feelings with other people who are in the same situation.
Rule #6: Connect with God. If your life seems lonely, fragile and maybe even frightening because of the loss you have experienced, spiritual counseling and fellowship can be extremely helpful.
A Prayer for Those Who Live Alone
I live alone, Lord, and I need Your help as I struggle with my daily life
I am often lonely and my home sometimes seems empty.
Please be my friend and comforter, dear Lord, and help me seek companionship in You and Your word.
Please keep me healthy, physically and, most importantly, mentally, as I cope with my loss.
I sometimes feel confused; help me focus.
Please keep me safe from people who may want to take advantage of me, and provide me with friends
that are trustworthy and loyal.
Please help me not to fear the future. Although I know that You own everything in the world,
I sometimes worry about money;
Provide for me daily and increase my faith in You.
Please help me look outside myself for people that I can serve and with whom I can share my time and talents.
Finally, Lord, please help me to be a comfort to others who have suffered loss too;
Make me a comforter of the afflicted and a source of hope and grace for them.
Thank you for all You provide, both in my life and in the next.
AMEN
