Texas Estate Planning

Probate: Where to Begin & Frequently Asked Questions

Although we counsel all of our clients on how to avoid probate, going through probate might be the best option for some families. Not to mention that things can change--You wouldn’t believe the number of bank accounts that lost their beneficiary designations when the banks got bought out or implemented new software. We know it’s frustrating and stressful, but our team is experienced in being the light at the end of the probate tunnel.

Of course, you should always speak with a licensed attorney before making any decisions regarding your dearly departed’s worldly possessions. We know it can feel helpful to get the ball rolling, and waiting for an attorney’s schedule to open up is the last thing you want to do, but trust us, there’s no reason to rush the probate process. Take your time, gather yourself, and start speaking to an attorney once the dust has settled and you have the death certificate of your loved one.

If you’re reading this article, it’s likely that you or someone you love might be preparing to go through the probate process, or maybe probate is something you’ve never heard of before, but you’re sitting down with a Will in front of you —so let us first express our condolences. Whether someone has already died, or you’re trying to keep busy and stay ahead of the chaos, we know it’s not an easy time. Our team is very familiar with probate and ready to support you from start to finish.

When the word “probate” comes into your daily life, it’s not uncommon to have more questions than answers. Let’s look at some of the most frequently asked questions together:

1. Someone I love just died, what’s the first thing I need to do?

   Take a deep breath and grieve. We know things can feel like they’re falling apart, but there’s no need to scramble at this time. It actually takes about 4-6 months to determine if probate is actually needed or not.
   
   Probate is the legal process that distributes a decedent’s estate (think bank accounts, home, pensions, etc.) to their rightful recipients. Some folks plan diligently to avoid probate—and their work comes as a great relief for the next generation. Due to the nature of direct deposits and automatic withdraws, it could take a few months to discover if there is an asset you cannot access.
   
   

2. What’s something I should NOT do right away?

   Despite what many people believe, you should NOT immediately close bank accounts. But if you really feel like you need to take action, you have a few options, you can…
   • Stop automatic drafts like any subscriptions or steaming services, health insurance, energy or gas bills, etc.
   • Call credit card companies, notifying them of the death in order to freeze accounts and avoid fraud.
   • Contact all income sources (i.e. pensions, SSI, etc.) so that direct deposits cease and you potentially avoid refunding these institutions.
   • Notify financial institutions that your loved one has passed, but again, do not close the accounts. Simply notifying the institutions will begin their internal processes of checking if any beneficiaries were designated on accounts or letting you know what they need to release the funds in said accounts. Typically, what financial institutions need is Letters Testementary, which you would receive at the end of the probate process.
     
     

3. Why can’t I close the bank accounts?

   There are a few reasons, we advise against this, but ultimately, if refunds need to be made or funerals need to be paid for, it is easier to accomplish these tasks if an account with your loved one’s name is still open.
   
   Please note that a Durable Power of Attorney document is only valid while the person granting those powers is still alive. At this point in time, only the Executor named in the Will, or a co-owner would be able to handle any of these tasks.
   
   

4. What if my loved one died without a Will?

   The legal term for this is “intestacy,” and in this case, your loved one’s estate will be distributed according to State Laws.
   
   

5. What do I need to start the Probate process?

   You will need to gather the following documents:
   1. Original Will (we can work with a copy, but the original requires fewer steps).
   2. Death certificate
   3. List of assets
      
      

6. So how long does the probate process take?

   It depends…probate has very specific instructions that we will help you navigate. Probate can take anywhere from 6-12 months or sometimes even longer. This means that if anyone is expecting to receive any money from the decedent, it will take as long as the probate process takes.

    

   We hope this article has helped guide you in the right direction in a time where things might feel directionless. We know this isn’t an easy process, but we’ll be here for you every single step of the way.

Blunders in Estate Planning May Lead to Breach of Family Harmony

The Financial Post’s recent article entitled “Avoid these five mistakes when estate planning to preserve family peace” provides us with some of the biggest mistakes:

1. Treating family members differently. People do this frequently. They may have valid reasons for doing so. However, it’s still not a great idea. Instead, comfortably tell your children in advance why you’re doing this. This will avoid anger and jealousy between the children when they discover this. Try to leave assets equally, even if you don’t think it is fair.
2. Pass the family vacation home to multiple children. It's best to either sell the home in your later years or, if you keep it, make sure it is openly discussed. You might set up life insurance to specifically pay taxes and perhaps one or two children, so the remaining children can afford to keep the cottage. Even so, a sale is the cleanest approach.
3. Don’t tell the children anything about your money. Not a good idea. This approach often eliminates any ability to understand what might be most meaningful to your children or beneficiaries. Maybe less so in terms of cash, but in terms of family heirlooms or property. Perhaps a favorite piece of furniture was really important to two children, but there was never any discussion about it. As a result, it’s now completely left to them to fight over. This may sound like a small issue. However, many families have split up forever over just this type of scenario.
4. Purposely or inadvertently leaving most or all assets to a new spouse. It can occur by accident due to poor planning around ownership titles, lack of pre-nuptial agreements or the unintended naming of beneficiaries on investment accounts or life insurance. However, sometimes, it’s meant to hurt the children. The hurt can certainly go both ways and is frequently a major issue when a spouse isn’t treated fairly. Ask an experienced estate planning attorney to walk through this with you.
5. Significant charitable giving. If your gifts to charity aren’t discussed with your so-called traditional beneficiaries, there can be conflicts with the charity that can be drawn out.

Communicate what you’re doing and why to your family.

Reference: Financial Post (Nov. 9, 2022) “Avoid these five mistakes when estate planning to preserve family peace”

 

Exactly Why Do I Need a Will?

Some people mistakenly think not having a will allows their assets to bypass the time and expense of probate. That’s not true–if you die without a will, your property still must go through probate, says Fed Week’s recent article entitled “The Importance of Having a Will.”

If probate avoidance is an issue, you can create a revocable trust to keep control over the trust assets while you’re alive.

Assets placed in trust during your lifetime can be distributed at your death, under the terms of the trust, without going through probate.

There are many types of trusts, and they all establish a financial arrangement between three parties:

• The Trustor
• The Trustee; and
• The Beneficiaries.

The person creating the trust is known as the trustor or grantor. The trustee manages the trust and disperses income or principal from the trust according to specific terms.

When you draft a will, you shouldn’t forget about it. Any births, deaths, marriages or divorces all may create a need to revisit your so-called “last wishes.”

After each change, make sure your current will is both safe and accessible. You can leave your will with your executor. If you decide to keep your will somewhere else, your executor and other family members should know its location. The estate planning attorney who prepared your will should have a copy, as well as a memo revealing the location of the original.

Regardless of where you put your will, have another document for your funeral and burial instructions. Wills generally aren’t read until days or weeks after death, so that won’t help your family make prompt decisions about a funeral or a memorial service.

As a result, a separate letter should be used to specify your final wishes and your executor should know where these instructions can be found.

Ask an experienced estate planning attorney to help you write your will.

Reference: Fed Week (Nov. 2, 2022) “The Importance of Having a Will”

Princeton's Largest Ever Bequest

William Scheide inherited a startling collection that his grandfather had started. The collection has been maintained at Princeton University since 1959. When Scheide passed away a few months ago, he left the entire collection to the university.

It is worth approximately $300 million.

Recently, Princeton released to the public the contents of the collection, as reported by The Telegraph in "Emily Dickinson's chocolate pudding recipe and nine other highlights from Princeton's $300m book haul."

Other highlights from the Scheide collection include:

• A copy of the original Gutenberg Bible
• One of Beethoven's musical sketchbooks
• Three original Shakespeare folios
• Handwritten sheet music from Bach, Mozart, Wagner and others
• An autographed speech by President Lincoln
• General Grant's copybooks from the last weeks of the Civil War
• A copy of the Koran from 1700

Even if you do not have an amazing collection to leave to your favorite charity, consult an experienced estate planning attorney for ideas on how to leverage what you do have for good.

Reference: The Telegraph (February 18, 2015) "Emily Dickinson's chocolate pudding recipe and nine other highlights from Princeton's $300m book haul."