Probate with a Will or Without

Last updated on: June 6, 2024

When someone passes away, their estate typically goes through a process known as probate, which occurs in probate court. This process is essential for legally transferring the deceased’s assets to their heirs or beneficiaries. Although many are aware of the term “probate,” they might not realize just how lengthy and complex it can be, sometimes extending over months or even years. Additionally, the presence or absence of a will can considerably alter the probate process. Speaking with an experienced estate planning attorney can offer professional advice, helping you make informed decisions.

If you are seeking assistance with probate matters, it is recommended to speak with a seasoned probate attorney. At The Law Office of Whitney L. Thompson, our Houston probate attorneys can help you navigate probate laws and procedures, whether or not it involves a will. We can provide personalized guidance tailored to your unique circumstances, alleviating the stress and confusion often associated with managing an estate. Contact us today at (281) 214-0173 to schedule a consultation.

Probate in the Presence and Absence of a Will

The probate process can be necessary whether or not a person dies with a Last Will and Testament (will). If someone dies and their will names a person to serve as the executor of their estate, then a probate court will appoint that person. If the will does not name an executor, or there is no will, then a probate court will appoint an executor.

After the executor files a petition with the probate court, any heirs or beneficiaries who are connected to the will are notified and have the opportunity to contest the will. The executor has control of the estate, which is comprised of all that the deceased person has left behind that is not already designated to go to beneficiaries.

After the executor has paid any debts and taxes owed by the deceased person, the executor distributes the remaining assets according to the wishes expressed in the will. If there is no will, the probate court will distribute the assets in accordance with state laws.

Topic Description
Probate Process Necessary whether or not a person dies with a will. Executor appointed by probate court, either named in will or appointed by the court if no will exists.
Executor’s Responsibilities Files petition, notifies heirs, pays debts/taxes, distributes assets according to will or state laws if no will exists.
Common Probate Issues Time-consuming due to court backlog. Complex process with potential for paperwork mistakes. Failure to file probate when necessary can lead to complications for heirs.
Simplification of Probate Process Some states offer simplified processes for smaller estates. Research if you qualify before starting probate.
Tips to Facilitate or Avoid Probate Joint ownership of property can ease probate. Regular beneficiary updates streamline process. Trust creation during lifetime avoids probate. Legal counsel navigates probate efficiently and plans for the future.

Common Issues in Probate

Since the court system is backed up, probate cases can take a long time to settle. This can be a problem for families who are trying to resolve a loved one’s estate and move on with their lives. It can be especially challenging for families in need who could really benefit from receiving their loved one’s assets sooner rather than later. Each state has different probate laws, which may offer a simplified probate process for smaller estates. So before beginning the probate process, find out if you are able to take advantage of the more straightforward process.

In addition to the long period of time it takes to complete the probate process, it is a complex process with many ways to make mistakes. For example, complicated paperwork can be hard to fill out accurately. Mistakes, such as forgetting to include things or filing the wrong paperwork, can increase the amount of time to complete the probate process.

In some instances, people don’t realize they need to file a probate case, which can cause problems down the road. For example, let’s say a married person dies and their surviving spouse does not complete the probate process for them. Years later, when the surviving spouse passes away, their children or heirs may need to open two probate cases instead of one. This can create headaches, especially for handling the estate of the first spouse since so much time has passed.

Tips to Facilitate or Avoid Probate

One thing you can do to avoid issues down the road is to own property jointly so that when one owner passes away, the surviving owner automatically becomes the sole owner of the property. Another thing you can do is periodically update the beneficiaries on any financial and retirement accounts you have. Creating a trust to hold and manage your property while you are still living is a way to avoid the probate process.

An attorney who is experienced in the probate process and estate planning can guide you through the probate process when your loved one has passed away. They can also help you plan ahead and create an estate plan that will simplify, or possibly avoid, the probate process altogether. 

This article offers a summary of aspects of estate planning law. It is not legal advice, and it does not create an attorney-client relationship. For professional legal counsel, you should contact an attorney. Please contact our Houston office at (281) 214-0173 or the Bay City office at (979) 318-5079 today to schedule an appointment and discuss how we can help you with your legal matters.

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