Probate Law FAQs

Probate is a legal process that occurs after a person has died. Their last will and testament is evaluated for validity, distribution of estate, and paying taxes.

Probate is handled in the appropriate state or county in which the deceased person permanently resided at the time of death.

Probate is necessary depending on contested wills, estate issues, or any other probate situation that needs resolving. There are tools that can help simplify probate but the need for probate is at the discretion of each state.

Yes. If the probate process is ignored, issues in selling properties or assets will arise. Tending to the probate process initially will help save time, money, and stress as opposed to dealing with it years later.

The duration of the probate process is affected by factors such as a will contest, where the beneficiaries are located and if contact between them and the attorneys can be facilitated, what the inheritance is comprised of and how complex it is, and whether or not the beneficiaries will agree to the distribution of inheritance. It is uncertain on how long the probate process can be due to the events mentioned that can impede the process altogether.

Though a lawyer’s assistance is not mandatory, it is urged to eliminate complications. Contacting the probate attorneys at Barrera, Sanchez & Associates, P.C. in McAllen will allow you to attain legal guidance throughout the probate process and to avoid errors that can result in unwanted drawbacks.

Yes, your attorney can serve as a witness to your will. However, if the attorney is listed as a beneficiary as well, then any assets that are listed to go to him/her will become void due to the possibility of a conflict of interest. As long as the attorney is proven to not have forced any undue influence on the testator regarding the signing of assets to beneficiaries, then he/she may be granted their assets. In the end, it is best to not have family members as your beneficiaries.

Whoever has been named as the Executor in your will is responsible for the distribution of your estate. Without a will, the court will assign someone to be responsible for the probate process. This is often a spouse or close adult relative.

Not necessarily.  There is a certain amount of property allowed to pass free of probate depending on your state.

When someone passes away, they usually leave behind a will. This document contains property and accounts that will then be passed on to an existing relative, loved one or partner, upon the owner’s death. An attested or formal will, can benefit you, and others, by distributing your property or estate more smoothly, making it easier for those who will handle the administration of it.

Family details, such as current marital status, the names and ages of children and other beneficiaries of your estate must be provided to any attorney in order to properly draft a will or trust. These are the persons or organizations who will inherit your estate. If you plan to leave property to your children, you will need to decide at what ages the children will receive said property. If they happen to be minors, you must choose a guardian that will care for them and manage their funds. You also must decide upon the shares of your estate that each beneficiary will receive. It is also important to provide a list of your assets and their approximate values in order to determine the most effective documents, such as the type of trust, to use in your estate plan.

In a will, the person or persons listed to inherit the estate of the recently deceased is a beneficiary or beneficiaries. They tend to be:

• A spouse
• Children
• Grandchildren
• Brothers, sisters, nephews and nieces
• Friends
• Organizations (Charities, churches)

In some cases, people list pets as beneficiaries. As a note, beneficiaries outside of your immediate family need to be identified specifically so as to avoid confusion as to who they are. For example, leaving a sum of money to a friend living in a different state or city should be identified specifically by full name, birth year, address and how you are acquainted with him/her.

The purpose of a will is to list who receives your assets after you pass away. Not having a will could make matters for your family difficult as it would be impossible to determine who you want your belongings to go to. Dying without leaving a will would allow the state to determine who your assets go to. The state tends to divide the assets evenly amongst your family. Your immediate family (spouse and children) will be forced to divide your assets evenly. Should you be single with no children, the state decides who amongst your blood relatives will get what. Both processes could possibly be drawn out and last several years.

In fact, you can.  However, since Texas has so many particular regulations, your will could be declared invalid if you fail to comply to any of these regulations.

This decision should be consulted with a probate attorney. This is because a will dictates the distribution of your estate, guardianship of your children and funeral specifications. A living trust is for the distribution of your specific or all estate after death. Clients sometimes opt for the inclusion of a living trust because in some states it can help reduce estate taxes and avoid probate. However, a living trust might not suffice and can be used as document to supplement a will.

You may choose whomever you’d like to be your witness at your will signing. However, your witnesses should not be beneficiaries (those listed in your will as eligible to receiving assets upon your passing). This is to prevent a conflict of interest. In some states, a beneficiary can be a witness, however, a stipulation of having one as such can and will result in the beneficiary not being granted assets, a fact varying by state. In Texas, this applies. Also, it is highly advised that your witnesses not be family members as it can bring about the same issues with beneficiaries. Always have your witnesses sign your will in the presence of a probate attorney as it will limit the possibility of a family member challenging the validity of the document.

Yes, you absolutely can change your will at any time. However, upon creating a new one, it is important to note on the existing will that any wills written prior are revoked and are no longer valid. The most common way of revoking a prior will is by destroying it (shredding, tearing, burning, etc.). Your will becomes final upon death. If you wish to modify an existing will without revoking it, such as adding a beneficiary or adding a recently purchased asset, you may amend it, referred to in legal circles as a codicil. Like a will, a codicil must also be signed and witnessed. A word of caution, never change your will without signing and/or without a witness as it could possibly revoke it entirely.

A living will is a will to inform your loved ones and doctors of your medical and artificial life support preferences during sickness or trauma.  A last will provides survivors with instructions in honoring your last will and testament with statements such as information regarding the distribution of estate, directions for funeral and burial proceedings, and appointing guardians for minor children.

A co-executor bears as much responsibility as an executor in the executing the will. They share duties such as paying final debts, overseeing the estate, and distributing wealth. All co-executors are expected to perform in unison and in agreement. If the co-executors do not act in unison, problems can arise in probate such as inconveniences, delays, and disputes.

Opting to write a will can ensure that your beloved puppy and favorite books go to someone you trust and love. Even if you do not own “much of anything,” everyone owns something. It may not be a boat or a mansion, but your possessions are still worthy of proper distribution in the event of your death. However, if you do not mind the state handling all of your possessions, distributing them as they please, then you do not need a will.

The purpose of having witnesses at your will signing is to validate that you are of sound mind and mental capacity to formulate one. It is suggested to have at least two witnesses at a will signing and the two must sign in the presence of each other. Witnesses cannot be included as beneficiaries in most states as it can create a conflict of interest. In other states, a beneficiary may serve as a witness, but as a penalty, will not be eligible to receive assets stipulated in the will.

Yes. However, the court is not restricted to the guardian on your will, but it will be considered.

Almost anything can be included in a will, from a treasured comic book collection to your great-grandfather’s cuff links. However, there are some items that cannot be included due to legal ramifications. These are:

• Any jointly held properties such as houses or other personal properties. After the passing of a testator, by law, the spouse (if there is one) will be given sole proprietorship of such properties.
• Trusts, insurance policies or retirement plans in which a beneficiary is clearly stated.
• Any stocks or bonds which will transfer to another party after the passing of a testator where a beneficiary has been named.

Consult a probate attorney to learn more about the stipulations surrounding items not applicable in a will.

The moment a testator and his/her witnesses sign a will, it becomes final and will never expire. There are no restrictions or limits as to the amount of time in which a will remains valid. However, it is possible that a testator (the will’s author) can terminate the will him/herself and start anew with another one.

If the testator has the ability to change the will, it is possible. State law could make a change of a testament if there is a divorce involved.

You can make a copy of your will for personal safekeeping or for a family member. A probate attorney can help you make the decision and advise you in what ways to make the copy valid if necessary.

The person wanting to contest a will (an heir at law or under the will) would have to file the documents that apply to the probate court.

When creating a will, a person must be of sound mind. This means that they should be sane, be able to think rationally, and comprehend their actions. Being of sound mind is required when formulating and signing legal documents like a will and testament.

A medical power of attorney allows you to designate an “agent” to make healthcare decisions should you become incapable of making those decisions yourself. Your agent may be your spouse or other person with whom you have confidence. Any type of medical diagnostic or treatment decision can be made with a medical power of attorney. Your agent would also have the power to make decisions regarding the use of life-sustaining treatment.

Yes, at some point following the passing of a testator, the will becomes public record. The reason being is once the court has possession of the will during the probate process, it will legally enter public record. Prior to the death of the testator, however, the document is treated as private property. On certain occasions, the will is required to be filed into the probate process.

The stipulations for creating a living will vary from state to state. While it is likely that a living will executed in one state would be honored in another, most experts recommend that you execute a new one as a precaution. A new living will can guarantee that your estate plan is not affected if you plan to move permanently from one state to another.

An executor can be your spouse, adult child, attorney, or any person you see fit for performing the duties of the last will and testament. Choosing responsible and trustworthy executors or co-executors is essential for the correct handling of your will.

Some states have certain requirements for the safekeeping of your will. There is the option of keeping it in a safety deposit box, in an area of your home where water or fire will not damage it, or with your lawyer. It is often advised to give a copy to the executor of your will.

Family disputes do arise when there is a family member(s) that feel they were wrongly left out of a will or did not receive what they see fit from monetary or material wealth of the deceased one. The situation can develop into a difficult and lengthy court battle.

If a will is lost or accidentally destroyed after the death of someone, the state will recognize the situation as if no will existed at all. This will lead to intestate and the state will take it upon itself to evenly distribute assets belonging to the deceased to the immediate family. The distribution of assets will reflect the laws of your state covering such a scenario. It is highly suggested making several copies of the will and to place them in highly dependable locations to prevent a loss.

A person who neglected to formulate a will and has deceased is referred to as intestate. The court then has the authority to distribute property or estate according to state jurisdictions. It is important to create a last will and testament if you do not wish for the state to have jurisdiction over your assets.

Adopted children will be recognized by the state in the same regard as your biological siblings so long as the final adoption decree has been completed. If a will has been written and the adopted child has been omitted from receiving any assets, then the state must recognize the will as it stands unless the omission was unintentional or if the will was written prior to the adoption and it can be proven that the omission was unintentional due to a lack of amendment. Then, the state will grant an equal share of the assets to all children, including the adopted one(s), unless otherwise specified. The adopted child will not only be eligible to receive assets from the adopted parents, but from relatives of the adopted parents as well. Also, depending on the state, the adopted child may even be eligible in receiving assets from their biological parents.

According to inheritance laws, yes, your father’s illegitimate children have the same rights as his others depending on certain criteria. If your father’s will specifically omit the illegitimate child, then the state will recognize the document as such. If there is no will, however, the illegitimate child can prove that he/she is the child of the deceased through a paternity test or if the deceased’s family confirms that the person is the child. Each state provides a time limit for a person to prove that he/she is the child of the deceased. The person may lose inheritance rights by waiting too long in proving paternity despite successfully proving the deceased is their biological parent.

In the event your father passes away, you are not responsible for paying any bills or debts incurred while he was alive or thereafter. Whatever your father has left in the estate will be used to pay-off any finances. You will receive whatever is left after all has been paid. However, if you inherit property that has incurred debt, you are responsible for it. For example, if you inherit a townhouse that was not paid off during your father’s lifetime, you are responsible for handling the debt.

Yes. This is one aspect of probate that encourages relatives to contest a will if they feel the testator was mentally incapacitated at the time of the signing of the will. If the dispute cannot be settled out of court, then probate litigation would follow in attempts to resolve the conflict through the state court system.

Being able to trust that the executor, or personal representative, your mother assigned is essential in knowing her estate will be distributed according to her wishes. However, in some unfortunate cases, the executor will take advantage of his or her “power” and choose to manipulate estate distribution with improper outcomes. If you are a beneficiary, it is imperative that you consult with a probate attorney immediately if you feel the will is being tampered with.

A trust is the arrangement between people whereby property is transferred to a second party to be held to benefit a third party.

Yes, a company can be listed in a trust. These are known as trust companies whose purpose serves to act on behalf of a person in the handling of assets. This entity does not own the assets that have been given responsibility for; rather, it acts as a custodian to care for said assets which include:

• Stocks
• Asset Management
• Fund Management

The term, sometimes considered derogatory depending on the context, refers to a person or persons born into wealthy families who are eligible in receiving a large trust fund upon the passing of a parent or relative. Trust funds are generally established early in the inheritor’s life by the parents and become theirs upon their reaching a certain age, usually 18, or if the parent dies. The term typically refers to people who live off of the fund rather than earning their own living upon their inheritance.

The term “estate” is used to refer to everything a person owns. This includes: bank accounts, real estate, furniture, jewelry, stock options, vehicles, cash, etc.

Intestate is simply defined as dying with either no will, or with an invalid will. Passing away without a will, or not having signed one in the presence of witnesses or a probate attorney, or even losing a will after the death of someone, can all result in intestate. The state will then take it upon itself to evenly distribute any assets belonging to the deceased to the immediate family. Challenging this decision could result in years-long litigation.

Estate planning is the arranging of the disposal of your estate.  If you want direct control of your assets, it is recommended that you get a will or a trust.

Estate planning involves the creation of documents such as a living trust or last will. These documents will specify distribution of property and wealth, funeral processions and guardianship of children. Estate planning ensures that your estate will be managed by appointed trustees or executors. They will ensure that your document is executed according to your preferences.

The best time to draft an estate plan is as soon as possible while you possess the mental capacity to enter a contract. Estate planning does not only involve decisions regarding what to do if you pass on. It is about making plans to take care of yourself, your affairs and your loved ones should you become temporarily or permanently disabled or incapacitated. Every adult needs an estate plan, however simple it may be.

An estate plan should be updated when there are changes in the testator’s beneficiaries, property, or family status (i.e. marriage, divorce, birth or adoption of a child, etc.). This is accomplished by executing a proper amendment to modify the existing will. Canceling the existing will followed by the formulation of a new one is also acceptable. It is not advisable to update a will by making written changes on it due to such revisions possibly being ineffective.