Asked & Answered: What does the probate process look like?

Last month we talked about what is probate, and I defined it as simply the court process we go through to allow us to transfer assets from the name of the deceased person to the name of their beneficiaries or heirs. This definition lead us to our next Asked and Answered topic: What does the probate process look like?

It seems like everyone is trying to avoid it— but I think it would be helpful to know what exactly what it is you are trying to avoid. 

The probate process looks different when we have a properly executed Will drafted by a skilled attorney, a properly executed Will downloaded from a form or drafted by yourself, improperly signed Will (which many cases ends up not being a valid Will at all),  and have no Will. For today’s conversation, we are going to discuss the process when you have a validly signed and executed Will and we are going to assume it was drafted properly by a skilled attorney and has elected for you to avoid common pitfalls seen in forms and self drafted wills. 

When a person has passed away with a validly signed and executed Will, the heirs typically go through the probate process. The first step is to identify the Executor nominated in the Will. This person doesn’t have authority to act as the Executor until they are appointed by the court. The nominated Executor is the person who presents the Will to the court for probate.  In Texas, even if you are nominated in a decedent’s (the person who passed away) Will, you still have to meet certain qualifications in order to serve as the Executor.  Under the Texas Estates Code, Section 304.003 you cannot be:incapacitated

  1. incapacitated
  2. a felon, 
  3. a non-resident who has not appointed a resident agent, 
  4. a corporation not authorized to act as a fiduciary
  5. a person whom the court finds unsuitable 

Once the nominated Executor is identified, this person files an Application to Probate the Will and for Letters Testamentary. After they file this Application they must ask the court clerk to post notice on the courthouse notifying all interested parties that an Application has been filed. This notice must be posted for at least 10 days prior to any hearing. Once the notice has been posted, then you can set a hearing. Each county has what we call “local rules” on how we go about setting a hearing, in Bexar County, if you are represented by an attorney you are allowed to go to a hearing the first Monday after the 10 day waiting period is expired. 

At the hearing, the Executor has to prove to the court that the Will is a validly signed and executed Will. If it meets the legal requirements to be a valid Will and passes the muster of the Court,  then, the court will sign an Order approving (aka probating) the Will and appoint the Executor to serve. Before the Executor can receive the Letters Testamentary (which are the letters giving them the authority and authorization to act as Executor of the Estate) the Executor must swear to carry out their duties as detailed by law and the Will.  Once the Executor is sworn in, they will receive the Letters Testamentary and begin their job as Executor. 

Once appointed, the Executor’s job begins. They must collect all of the assets of the estate, send proper notices to creditors, send notices to beneficiaries, file the last income tax return of the decedent, and distribute assets.  There are certain time requirements for each of these things to be done. In general, there is a deadline to file certain paperwork with the court at 30 days from being appointed, 60 days and then again at 90 days. The paperwork the must be filed includes proof that proper notices were sent to the appropriate persons and entities, and and Inventory detailing the assets in the estate.  Depending on the type of assets that need to be distributed and the beneficiaries, assets may begin to get distributed as early as 90 days after the Executor is appointed and sometimes it is much longer. 

5 Estate Plan Myths Debunked

There are many myths and misconceptions about Estate Plans. I have complied a list of the 5 most common myths about estate planning.

1. “I don’t have an estate, so I don’t need an estate plan.” 

This claim cannot be further from the truth! An estate plan is important regardless the size of the estate. An estate plan contains important medical and financial documents. There are at least six essential documents every person over the age of 18 should have in place. 1) Durable Power of Attorney; 2) Medical Power of Attorney; 3) HIPAA Release 4) Declaration of Guardian; 5) Directive to Physicians; 6) Last Will and Testament.

Durable Power of Attorney – This document allows you to name an individual to make financial decisions in the event you are unable to make those decisions. It allows you to designate someone to pay your bills and manage your accounts so you are not behind when you regain abilities. Furthermore, in the event you are incapacitated, a durable power of attorney will allow your family to avoid the costly and time-consuming experience of Guardianship.

Medical Power of Attorney – The medical power of attorney is similar to the durable power of attorney, except instead of designating an individual to make financial decisions, you designate an agent to make medical decisions.

HIPAA Release (Health Insurance Portability and Accountability Act) - The HIPAA release is a document where you designate people you want to have access to your medical information. Doctors are legally limited in the amount of information they can share regarding your health care information and this documents enables the doctors to speak freely with the people you designate.

Directive to Physicians- This document is often referred to as the “Living Will”. Sometimes people confuse the “Living Will” with the Last Will and Testament. These are two completely different documents.
The Directive to Physicians, or “Living Will” is where you designate your desires of care in the circumstance that you are in a terminal or irreversible condition. Although this decision can be difficult, a Directive to Physicians allows you to stay in the driver’s seat of your health. Furthermore, it reduces your families stress because your wishes are known.

Declaration of Guardian – I describe this document as our back up to the Durable and Medical Powers of Attorney. In the event that you must have a Guardian named this document permits you to designate who you want to be your guardian. Having this simple document can save families thousands of dollars in lengthy litigation.

Last Will and Testament - The Last Will and Testament is a document where you designate how you would like to pass your property, as well as, where you name the guardian for your children in the event you pass away with minor children. This document ensures that your desires and intentions are followed and avoids a more costly intestate process.

In fact, it is people with smaller estates that hurt the most when no plan is in place. When you find yourself dealing with an unexpected incapacity or death the legal fees to have someone appointed to make financial decisions and medical decisions tend to cost exponentially more than it does to put together an estate plan with an attorney. These expenses can really take a toll on smaller estates. Often, just by having the documents contained in an estate plan, a family can save the money and headache of dealing with the courts. 

2. “I already have a Living Will, I don’t need another Will.”

This statement makes me cringe. A Living Will and a Will (or Last Will and Testament) are two completely different documents. The technical term for a Living will is “Directive to Physicians”. I prefer to use this statutory term, “Directive to Physicians” rather than the term “Living Will”, because I believe the term “Living Will” is confusing. 

  • The Directive to Physicians is the document were you decide whether you would like all life sustaining treatment or you choose to be let go gently in the event you are in a terminal or irreversible condition. This is an important piece of an estate plan, but it is just one piece and it is NOT a Will or a Last Will and Testament. 
  • The Last Will and Testament is the document were you designate who will care for your children, who you would like to handle your estate, and who you would like to inherit as beneficiaries when you pass away.

3. “I have a Will so I can avoid probate.”

False! Probate is the proceeding where we prove the Will is actually the Last Will and Testament of the Deceased, that it meets all of the legal requirements,  and the court appoints the Executor to act on the behalf of your estate.  In your Will you typically have the opportunity to name who you would wish to serve as Executor. The person does not become the Executor until they are appointed and take an oath with the court.  The person you name as Executor in your Will cannot act on the behalf of your estate until the Will is probated.

Fortunately, the probate process is a relatively straightforward in Texas. Having a Will allows families to avoid the extra cost that often occur in the intestate process, which is the process most families must go though when there is no will. 

4. “I don’t need a Will because everything will just go to my spouse.”

Not necessarily.  It is never safe to assume your estate will “automatically” pass to your spouse.  There are so many factors that can affect who property passes to. I have seen countless situations were spouses mistakenly thought their house or other property was going to go to their surviving spouse but they end up having to share the asset or it went to to someone else instead. It is important to sit down with an attorney and account for each of your assets to make sure they pass to the people you want.

5. “After I get a Will there is no need to have it redone.”

Unfortunately this is not true. You should review your estate plan annually and with an attorney at least every five years. You should review it annually to make sure it is what you still desire. Life is constantly changing and depending on the events that have occurred in your family, such as, death, adoption, birth of a new child, or increase or decrease in the size of your estate your estate plan will too. 

Bravery, Courage & Vulnerability

A friend of mine recently shared Brené Brown's TEDx talk on shame, vulnerability and the key to wholehearted living. After watching both TED talks, I hopped right on to Amazon and bought her book Daring Greatly. I've been told I started out of order... so I plan to purchase her earlier books. But let me just tell you...Worth. Every. Penny. Before you go any further, see for yourself and watch this video:

I'll go ahead and save you a Google search and give you the link to buy the book, too.  Click here.  (This isn't even an affiliate link, I get no financial benefit from sharing this)

Brené Brown points out that our fatal flaw is associating vulnerability with weakness. But she then explains that vulnerability isn't weakness at all. It takes great strength and courage to be vulnerable. Let's take the image of boxers going into a boxing ring. Once they enter the ring, they are exposed and vulnerable to getting hit. Heck, they are guaranteed to get hit.  A part of vulnerability is being aware of your weakness and being courageous in spite of the fear of getting hit. Boxers know where their weakness is - that's why you see them hold their gloves up and guard their head and face. I am sure many of you haven't thought "man, that guy (or gal) sure is vulnerable by going into the boxing ring". Most of us think about their strength and are impressed with their ability to take a hit. 

I think estate planning is similar. It takes courage to face your fears. These conversations make us feel vulnerable because we are coming to face our own mortality. We acknowledge we are not invincible. Having a will, or a power of attorney, is like keeping your gloves up and blocking your face. It's taking care of the most important things, your husband, your wife, your kids, your parents, your family. We cannot step in to the boxing ring without getting hit [and spoiler alert: if you're living life--- you are already in the boxing ring]. So put your gloves up. Block your face, and guard your weaknesses.

 

Asked & Answered: What is Probate?

You may have heard of the illusive term of “probate”. I hear people use the term in my business quite frequently, but often it sounds like the person who is using the term isn’t quite exactly sure what it is.  I have had people lead conversations with “How do I avoid probate?”, but they are not quite sure what it is that they are trying to avoid — or the why. It is completely understandable too. Most people are not confronted with probate on a regular basis. Most of the time you are only facing probate when someone in your family or a close friend has passed away, it isn't a frequent occurrence people tend to face. That is why I am here. To help clear the cob webs, and maybe even walk through the process with you. 

Probate at its most basic definition is the court process we go through to allow us to transfer assets from the name of the deceased person to the name of their beneficiaries or heirs. 

To dive in a bit deeper, it’s the court process we go through to prove a Will is valid and ask the court to appoint the Executor to carry out the wishes of the deceased person as stated in the Will.  This means having a validly executed Will will not help you avoid probate. 

The next question then is:  What does the probate process look like? Check out next month’s article in the Asked & Answered series to find out! 

Tough Conversations

Tough Conversations

This is about having the tough conversation of making sure your family is protected in the event something happens to you. It ensures your children are safely placed in the hands of loved ones rather than spending the night in a CPS office or a stranger's home. It's the peace of mind knowing your family will be taken care of if you are not around or able to do it yourself. 

To my fellow mamas, I hear you and I am here for you.

Well, here we go. This is my first blog post as Principal and Founder of Batsche Law. I am filled with a lot of excitement and anticipation. I am excited about what Batsche Law means to my family and I am excited about what it could mean to yours. My hope is Batsche Law will be a resource to families and after interacting with my firm will feel a sense of understanding, a sense of overwhelming peace, and security.

I am most exited about my virtual law office. My virtual law office allows me to serve clients all over the state of Texas. So whether you are in El Paso, Dallas, Houston, Austin, San Antonio, Brownsville, or somewhere in between, I am here to help you. I am here to simplify the law. I am here to help you understand how the law effects you and your family and most importantly, I am here to show you what you can do about it. 

I too, am a mother. The constant wondering and questioning is a feeling that is all to familiar. I desire to protect and cherish my son, and to make sure I have things appropriately set up for him. I know the constant daily worry we have for our babes.

Am I doing enough?

Am I doing too much?

To my fellow mamas, I hear you and I am here for you. 

Let Batsche Law help. Allow me to give you confidence in knowing that if you are not here, your babes will be taken care of; let me help you find the rest in knowing you’ve taken care of this small and necessary piece of designating guardians for your child; let me help you take care of this piece so you can focus on everything else. 

Life is crazy, overwhelming and here at Batsche Law we desire to be a beacon of stillness, rest and confidence.