If you recently lost a family member or loved one you are likely experiencing a range of heightened emotions as you process the loss. Anger, denial, confusion and grief are all common reactions to the loss of someone close. The last thing on your mind may be the legal ramifications of your loved one’s death. If, however, you were named as the Executor of the estate in your loved one’s Last Will and Testament, your loved one has put you in charge of the administration of his/her estate. You may also find yourself in charge of the estate if your loved one died intestate, or without a Will and you find yourself volunteering to be the Personal Representative of the estate. Most Executors/Personal Representatives (PR) retain the services of an experienced estate planning attorney to help them navigate the probate process; however, to help you get started with your duties and responsibilities, the estate planning attorneys at The Mendel Law Firm have put together some Houston, Texas probate resources that you may find helpful. If you have specific questions or concerns about a probate issue, please feel free to contact our office to schedule a consultation.
What Is Probate?
When someone dies, that individual leaves behind an estate that consists of all assets owned by the decedent at the time of death. Probate is the legal process by which those assets are ultimately transferred to the intended beneficiaries and/or heirs of the estate. Probate also serves as the legal process wherein creditors of the estate may file claims against the estate and as a way to ensure that any tax obligations owed by the estate are paid. The individual who oversees the probate of an estate is referred to as the Executor and is appointed by the decedent if a Last Will and Testament was executed prior to death. If the decedent died intestate, or without a Will, any competent adult may volunteer to be the “Personal Representative(PR) and oversee the probate of the estate. For the most part, the duties and responsibilities of an Executor and a PR are the same. For convenience sake, the generic term “Personal Representative (PR)” is frequently used to refer to either an Executor appointed in a Will or a PR who has volunteered for the position.
For more general information on the probate process, try perusing “The Probate Process” section of the American Bar Association’s website. Although it is from a different county, the Dallas County Probate Court also has a helpful “Probate Frequently Asked Questions” section you may find handy. Finally, the Harris County Probate Court also has a “Helpful Guidelines When in Harris County Probate Court” section that has a wealth of helpful information regarding Wills, estates, and the probate process.
If You Are Thinking about Proceeding Pro Se (Without an Attorney)
Probating an estate often involves complex legal and financial issues with which the average personal is unfamiliar. In addition, a PR is typically representing the best interests of numerous beneficiaries and/or heirs of the estate. Consequently, the State of Texas requires an Executor or PR to be represented by an attorney during the probate of an estate. For more information, feel free to read through the pamphlet entitled “Harris County Probate Courts Policy Regarding Pro Se Applicants.”
Finding the Right Attorney
Given that almost all PRs are required to be represented by an attorney, it is wise to start looking for the right attorney to assist you as soon as possible after being notified of your role in the probate of the estate. A good place to start is with the American Academy of Estate Planning Attorneys website. The AAEPA is a national organization of attorneys who have chosen to focus their practice on legal issues related to wills, trusts, and estates. Membership in the AAEPA signifies that an attorney has proven experience in the areas of estate planning and/or elder law. You may also find assistance through the State Bar of Texas Lawyer Referral Service.
Resources for the Executor/Personal Representative
An estate is usually probated in the county wherein the decedent was a resident at the time of death. As such, if the decedent was a resident of Houston, Texas, at the time of his/her death, the probate of the estate will occur in one of the Harris County Probate Courts.
To initiate the probate of the estate you will need the original copy of the decedent’s Last Will and Testament (if one exists), along with a certified copy of the decedent’s death certificate which can be obtained through the Texas Department of State Health Services. One of the many duties of a PR is to identify and locate all assets owned by the decedent that may become part of the estate. Toward that end, you may need to conduct a property search which can be accomplished on the Harris County Appraisal District’s website. You are also required to ensure that all creditors have been notified that probate is underway. While known creditors may be notified individually, unknown creditors are notified via publication in a local newspaper, such as the Daily Court Review.
Paying Estate Taxes
Finally, every estate is potentially subject to federal gift and estate taxes. As the Executor/PR of the estate you must prepare an estate tax return and determine if the estate owes any federal taxes. The Internal Revenue Service (IRS) website offers a general overview of the federal estate tax. They also have a “Frequently Asked Questions about Estate Tax” section that may be helpful. If the estate does, indeed, owe federal gift and estate taxes, those taxes must be paid before any assets are transferred out of the estate. The State of Texas does not impose a state level estate tax.
If you have questions or concerns about anything related to the probate of the estate in Houston, Texas, contact an experienced Texas estate planning attorney at The Mendel Law Firm, L.P. by calling 281-759-3213 to schedule your appointment today.