Probate Law El Paso TX
Probate in Texas
In the State of Texas, probate is the legal process of validating a Will (Testate) or if there is no Will (Intestate), determining the heirs of the decedent. In El Paso, Texas, probate occurs in one of two specific probate courts within the county. These courts exclusively handle all probate matters in El Paso County.
Non-probate assets are assets that do not pass through the probate process. Non-probate assets include bank accounts with Payable on Death provisions, investment accounts with designated beneficiaries, and Transfer on Death or Lady Bird deeds.
Generally speaking, all other assets held solely in the decedents name will need to be probated by the court. Meaning depending on the assets and plaining of the decedent, there may be no need to probate the estate as all the assets passed outside of probate.
If you have any questions about the probate process call 915-201-2633 to schedule and appointment.
When a person passes with a will, an interested person (someone who may benefit from the will) must petition the court to determine if the will is valid. A valid will designates an Executor, who is in charge of seeing that the assets are distributed according to the will. The court will determine if the Executor is qualified to serve, and, if so, the court will issue letters granting them the authority under law to sell and transfer the decedents property to the Beneficiaries. The court may disqualify some Executors due to criminal convictions or bankruptcy. In these cases, the Court will see if there is an alternative Executor named in the will, or will appoint one if there are no alternatives named. Generally, the Executor named in the will petitions the court to start the probate process, but any interested person can apply. The probate process is not automatic. Someone must petition the court within four years of the death, or the will may be considered invalid.
Within this process, there are different types of will probate procedures depending on the size of the estate, types of existing debt, and limitations that the will may have placed on the Executor. Because of this, probate can range in complexity and price.
When a person dies without a will, an interested person must complete an Application to Determine Heirship and Appoint an Administrator. This process asks the court to determine heirship and what interest those heirs may have in the decedent’s assets. The court will determine the heirs of the decedent and appoint an Administrator to oversee the dispersion of the assets. Similar to a Testate probate, the assets that pass via this process are the probate assets. However, in this case, the probate assets are distributed according to Texas statutory law, since the decedent left no will or directions. This Harris County diagram explains the distribution percentages.
Again, there are a variety of Intestate Probate processes. Depending on the decedent’s property and debt, it could be a simple process costing less than $1,000 for an Affidavit of Heirship, or it could cost several thousand for a Dependent Administration.
Please call 915-201-2633 to schedule an appointment so we can effectively advise and guide you.
Affidavits of Heirship
An Affidavit of Heirship can be used when a decedent passes without a will and their estate is primarily real property, like a house. In the State of Texas this process also exists for automobiles. The affidavit must be sworn to and signed by two disinterested witnesses, who had knowledge of the decedent’s life and family history. The affidavit is prepared by an attorney and filed in the real property records of the county where the real property is located. This does not transfer the property the way that a deed does, but after 5 years, it creates a presumption under the law that the property is owned by the heirs listed on the affidavit.
Generally speaking, most title companies will accept an affidavit into the chain of title and insure the title when the Heirs choose to sell the property. If the title company doesn’t accept an affidavit a full probate proceeding may be necessary.
Affidavits of Heirship are advantageous to some because they can cost significantly less than Intestate Probate proceedings. If the heirs do not have any interest in selling the property within 5 years, it is a more cost effective and simple process.
Lady Bird Deed
A Lady Bird Deed, also called an Enhanced Life Estate Deed, is a deed that allows the grantor to keep total control of the property, but when they pass the property transfers to the grantee’s listed in the deed. This means that the grantor can sell, mortgage, and do whatever they want with the property while alive. They can even cancel or modify the deed. The grantee has no rights or ownership in the property until the death of the grantor.
This type of transfer of property is unique and highly valuable in two ways:
- The property passes as a non-probate asset, meaning there is no need to spend money and time in probate court. Generally speaking, if the decedent’s only asset is their home, by passing the property with a Lady Bird Deed, probate court is totally avoided. But this deed must be done during the grantor’s lifetime and cannot be done after passing.
- When a property is transferred by Lady Bird Deed, Medicaid does not attach to the house. Normally, if the decedent had Medicaid then Medicaid has an interest in the estate and can collect against the value of the house. But in this case Medicaid cannot attach, meaning that the grantees will receive the entire house free of a Medicaid lien that would normally need to be paid.
A Lady Bird Deed can cost significantly less than probate proceedings, but it must be completed prior to the individual’s passing.
Unfortunately, there are people that may try to take advantage of someone in their final moments of weakness due to age, sickness, or mental condition. In some cases, these people can influence an individual to create a new will that benefits them as opposed to the Testator’s originally intended Beneficiaries. These situations are more common than not, especially in situations where there are many children, multiple marriages, or a “non-traditional” family.
This is one of many reasons why it’s important to have an attorney represent you in a will contest. Although a will can be challenged up to two years after admitted to probate, it is advantageous to challenge a fraudulent or influenced will before it’s admitted and the assets have been moved or spent. If you think a loved one has been taken advantage of please call us to schedule an appointment so we can properly advise you of your options.
Even after a will has been validated and an Executor has been appointed by the court Beneficiaries are at the mercy of the Executor to sell, divide, and transfer the assets. But where there is money, there is an opportunity for fraud and deceit.
If you feel that you have been wronged in the distribution of an estate, or if you are an Executor who is being accused of wrong doing, please call us so that we may advise and guide you in this process.
Winton Law El Paso PC Probate Attorney is ready to handle all of your probate needs.
Please call 915-201-2633 to schedule an appointment so we can effectively advise and guide you through the Probate process.