Common Misconceptions About Probate

When people die, their estate – basically, the assets they’ve left behind – most often will have to go through probate court proceedings, unless they’ve carefully planned ahead and created a trust in which to stow their assets. With a trust, probate can be avoided, and a named trustee can administer the estate and distribute assets to heirs outside of court supervision.

The problem is that most people don’t plan ahead. Surveys have shown that only somewhere between 30 and 40 percent of Americans have even prepared a last will and testament, commonly referred to as just a will.

Common reasons cited for not having a will are “I don’t know how” and “I don’t have enough assets to worry about.” “Don’t know how” is easily solved by conferring with an estate planning attorney, and “not enough assets” is often simply a misunderstanding or misguided idea of what constitutes an estate. After a lifetime of working, most people are going to have accumulated valuable assets that can help their loved ones when they’re gone.

Without a will or a trust, a person will definitely have their estates administered through probate proceedings. Even those with wills who have carefully spelled out how their assets are to be distributed to their heirs and beneficiaries will also be subject to a probate judge presiding over the administration and distribution of their estate.

The mere sound of probate seems to send jitters down people’s spines. Misconceptions about probate abound, as they do in general about estate planning. Some people fear it means the government will seize all their assets, or that probate will take so long that their loved ones won’t see anything in time to help them.

For all your questions and concerns about probate, or about estate planning in general, in or around Colleyville, Texas, and throughout Tarrant County, contact Brooks P. Lynn, Attorney at Law. I’ve spent the past 25-plus years helping people navigate the probate process. I provide personalized, caring service to all my clients.

The Probate Process

In most cases, probate can be a fairly straightforward process, especially if the decedent left behind a will and named a personal representative to administer the will in probate court. The court will name the personal representative as the executor of the estate and then rely on that person to carry out various functions integral to the process.

In a nutshell, probate moves through several stages overseen by the court but carried out by the executor. First, the soon-to-be executor presents the death certificate and will to the probate court. After the court names that person executor, he or she must notify heirs, beneficiaries, and creditors that the administration of the estate has commenced.

If creditors present claims, the executor must pay them through the assets of the estate. The executor must also pay any income or other taxes due. In the process, the executor must also collect all of the assets in the estate and take control of them. If any need to be sold to pay creditors or meet obligations named in the will, an appraiser and broker may need to be brought on board to conduct the sale.

When all obligations have been met, and with approval of the probate court, the will can finally be administered, and assets distributed according to the wishes expressed by the decedent.

Now, if a person dies intestate – without a will or trust – the probate court will name an executor, usually from close family. Also, since there is no will to designate who gets what, the court will decide on the distribution of assets using the state’s laws of intestacy, which begins with the spouse and immediate family members.

Common Misconceptions About Probate

Of course, the above is a pretty bare-bones description of the probate process, and it doesn’t directly address many questions, concerns, and misunderstandings that people have about probate proceedings. Here are some of the most common misconceptions:

Unless I die without a will, my family can avoid probate court proceedings: The answer, even from the brief descriptions above, is definitely no. However, in certain circumstances when all assets are either jointly held or have named beneficiaries, there may be no need for probate. For instance, if the decedent leaves behind a home jointly owned by the spouse, the home passes directly to the spouse outside of probate.

The same holds true for life insurance policies and retirement accounts. If they have a named beneficiary, perhaps the spouse, then they pass directly outside of probate. If bank accounts are set up as payable upon death, they too pass outside of probate.

Probate means the state will take everything: This is not true, even if you die without a will. The state’s laws of intestacy determine who gets what, which is based on a hierarchy of family members starting with the spouse and children, though it can get complicated if the decedent were married more than once.

The probate process takes years to complete: Very, very rarely if ever would probate take years. The estate would have to be so huge and challenged so many times by disgruntled heirs and creditors that it would take that long to sort things out. Though probate can sometimes be completed in three to six months, the more likely time frame is around eight months, though there is no standard probate scenario.

Estate taxes will consume most of my estate: Texas imposes no estate taxes, and federal estate taxes enjoy generous exemptions. The estate tax is also portable, meaning that the surviving spouse not only enjoys that level of exemption, but with proper planning, the threshold can double to $24.12 when the surviving spouse passes on.

I don’t need an attorney to go through the probate process: If you are the executor of an estate, you will no doubt be called upon to do things you may have limited or no experience in doing. Most of all, you will have questions. If a would-be beneficiary or heir challenges the validity of the will, you will need legal expertise that you no doubt were never trained for.

In short, an executor in probate should always rely on the knowledge and experience of an attorney familiar with the process. Some of the forms and documents the probate court requires can be complex and confusing. An attorney can help you navigate any and all challenges.

Experienced Probate Attorney in Colleyville, Texas

If you’re the family of a loved one whose will is being probated, or if you are the executor of a person’s will, it can be a time of great stress and emotion. Questions will arise and situations may spiral out of control. This is why you need the guiding hand of an experienced probate attorney to help you deal with all questions and challenges.

I proudly serve clients in and around Colleyville, Texas, and throughout Tarrant County. Contact me, Brooks P. Lynn, Attorney at Law, immediately with all your probate concerns, so I can help you move through the process smoothly while enjoying peace of mind that your loved one’s wishes are being respected.