Denton Probate Lawyers
What is the Probate Process?
When a loved one passes away, the family often faces daunting challenges. In the first few days following their death, the most important task is to make sure your loved one is laid to rest. In the following weeks or months, many families ask, “What do I do with their items of personal and real property?”
What is Probate?
Probate is a legal process that ensures a deceased person’s will is carried out as intended and all of their owed debts and taxes are paid in full. A probate court also makes sure your loved one’s written will is valid.Your probate experience depends on your loved one’s will or absence of it, and there are various responsibilities and challenges involved that can best be handled by our Denton probate attorneys. For a simple estate, the entire probate process could be completed within 6 months but for a more complex estate or if the will cannot be located, or is contested than you can expect the process can take a year or longer.
If your loved one died with a will (testate), they’ve given you instructions on how they want their estate handled. To administer an estate, you must apply to probate the will in the appropriate county within four years of your loved one’s death.
It can be done after four years, however, there are more requirements. The probate court will determine whether your loved one’s will meets the legal requirements. If the will named a qualified executor, or person responsible for the implementation of the will, the court can appoint that person to manage the estate.
Once the assets are collected and debts are paid, the executor will divide and distribute the decedents’ remaining assets.
Intestate & Partial Intestacy
If your loved one died without a will (intestate), the probate process is more complicated. Since no will exists that dictates their wishes, these steps are taken:
- The court determines the heirs to the estate.
- An application to determine heirship is filed with the court by an interested party. This document asks the court to identify the heirs. You must provide contact information for two disinterested witnesses, meaning witnesses who will not get anything from the estate.
- The probate judge will appoint an attorney ad litem to represent the “unknown Heirs or heirs with a legal disability.” This attorney will research your family history and speak with the witnesses.
The attorney ad litem will issue a report which lists the heirs and their
respective shares of the estate according to the laws of descent and distribution
which are detailed in the
Texas Estates Code Chapter 201. These laws state that the surviving spouse and children are the first
to receive the decedent’s assets.
- If, however, no spouse or children exist, then the state looks to decedent’s parents. If children exist from a previous marriage, the distribution will be altered.
Texas recognizes the theory of community property, which is generally personal or real property acquired during the marriage. If the decedent died during marriage, special rules apply to the distribution of community property.
If your loved one died with a will that did not dispose of all assets or did not create a contingency plan which named alternate distributees of assets, then a determination of heirship may be necessary.
The assets disposed of in the will would be distributed according to that document and the assets which are not distributed will be distributed to the decedent’s heirs at law.
The executor or administrator must collect and appraise all assets, notify all creditors and beneficiaries, and document inventory the estate. If a lawsuit is filed against the estate, the executor or administrator must defend the suit. If taxes are due, the executor or administrator must retain a Certified Public Accountment (CPA) to file a tax return for the estate. Our team does not give tax advice.
Unfortunately, disputes are common when administering an estate. Certain family members might have been “promised” an asset or forgiveness of a loan by the decedent which contradicts or is inconsistent with the will and estate planning documents.
If this happens, it may delay the estate administration process which can result in added expenses for administering the estate. Litigation may be necessary to preserve the estate or prevent the depletion of assets. Distributees may also challenge the mental capacity of the decedent, or challenge whether the estate plan reflects the decedent’s wishes.
A distributee may even assert undue influence, which means the decedent was manipulated by the person who helped create their will, such as a lawyer. If you believe that your loved one’s estate planning documents did not reflect their true wishes, litigation may be necessary.
Count on Our Trusted Denton Probate Lawyers
At the James H. Horton Law Firm, we currently serve clients from Denton, Dallas, Colin, Tarrant, Wise, and Cooke Counties from our law offices in Denton, Texas. Our estate planning and probate lawyers are very familiar with all local, state and federal court systems, and we are licensed to practice in courtrooms across Texas. Thus, we have the competence and qualifications needed to help you carry out your loved one’s wishes as seamlessly as possible.
Our attorneys have over 60 years of combined experience representing clients in their legal matters, including estate planning. We also help estate administrators and trustees fulfill their duties and obligations. As a result, we urge you to reach out to our probate attorneys at (940) 310-6122 to get started on resolving your situation right away.