WILLS AND PROBATE

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WILLS AND PROBATE2018-08-27T00:28:56+00:00

Wills

Creating a last will and testament can lay out a plan for the desired distribution of assets including real and personal property upon your death. Texas wills offer the testator (the person making the will) the opportunity to provide for a spouse, children, other loved ones, and pets.

A living will is sometimes confused with a last will and testament, but it does not provide for the distribution of assets upon death. Instead, a living will provide instructions for others regarding your wishes should you become incapacitated and incapable of making decisions regarding your medical care.

Do You Need a Last Will and Testament?

Although a last will and testament are not legally required, without will state laws (called laws of intestacy) will determine the distribution of an estate’s assets. The outcome under intestacy rules may not coincide with the decedent’s (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.

One of the biggest benefits of a last will and testament is that it allows the testator to select the executor of the estate — an important decision, as the executor will be in charge of carrying out the wishes contained in the will and deciding how assets should be divided. Because of this, creating a will often provides the testator with a great peace of mind, knowing that her wishes will be followed after her death.

Texas last will and testament also give a testator the option of choosing a guardian for minor children. You may also set up a trust through which property is held for the benefit of another.

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Probate

Probate

State laws govern the process by which a person’s assets are distributed after he dies. If the deceased, known as the decedent, dies with a drafted will, the executor or the personal representative in the will typically must file for probate. In Texas, state and local court rules govern the various time periods that the executor must follow in probating a will.

To File for Probate

The general rule in Texas is that the executor has four years from the date of death of the testator, or person who drafted the will, to file for probate. Generally, if the executor does not file the will within that prescribed time period, the laws of intestacy will govern how the estate’s assets are distributed. In that case, it would be as if the person died with no will and the laws of the state would decide how the assets are distributed to each heir. In practice, a will is usually probated in Texas from between two months to one year of the estate owner’s death.

Notice to the Public

Once the executor files the will for probate, Texas probate law requires the executor wait approximately two weeks before she can have a hearing. The reason for this delay is so the court can provide notice to the public that a will was filed for probate. The law requires 10 business days and can sometimes be longer for a variety of reasons.

Notice to Creditors

The probate court authorizes the executor to act on behalf of the estate through Letters Testamentary, which are official letters from the court. Once she receives the Letters Testamentary, the executor has a set time period to provide notice to all creditors of the estate. The Texas Probate Code gives the executor one month from the time she receives Letters Testamentary to publish a notice in the local newspaper for the estate’s creditors.

Notice to Beneficiaries

The executor has a set time period to provide written notice to all of the will’s beneficiaries. Once the probate judge admits the will to probate, then the executor has 60 days to provide a certified written letter to all beneficiaries named in the will. The executor must include a copy of the will and a copy of the court order admitting it for probate. Within 90 days of receiving the court’s order, the executor must file an affidavit attesting that he provided the requisite notice to the will’s beneficiaries.

The Entire Process

The time to probate an estate can vary on a case-by-case basis. Several factors may influence whether an estate takes a longer period of time to probate: First, the size and complexity of the estate can increase the amount of time it takes for probate. Second, if a beneficiary or creditor files any claims against the estate, it can make the probate process longer and cost more.

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