WE'RE HERE TO HELP
As a certified Seniors Real Estate Specialist (SRES), Geni Manning and the entire team understand the emotional difficulty, frustration and stress that accompany losing a loved one.
The Geni Manning Real Estate Group have the necessary knowledge and expertise to assist families through the difficult process of selling the family home and navigating the probate process. Our team includes strategic partners, such as probate attorneys, escrow officers, mortgage specialists, estate sale companies, auctioneers, moving companies, estate planners and financial advisors–all providing expertise to minimize the burden and stress.
Oftentimes the family doesn’t want to deal with selling the family home and all the tasks that go with it (clearing out the home, repairs, inspections, appraisal, etc.). We have a program, ‘Sell Fast For Cash’ that eliminates all the stress and headaches of these tasks.
WHAT IS PROBATE
Probate is a legal process involving the analysis and transfer administration of estate assets previously owned by a deceased person. The assets of a deceased property owner will be reviewed by a probate court; however, there are exceptions. Texas law recognizes three basic types of probate. These are Uncontested Probate of a Will, Contested Probate of a Will, and Muniment of Title. Beyond these, there are also other simpler ways in which the property of a deceased individual can be properly transferred.
If the deceased has left a Last Will and Testament (Will) it will typically address the decedent's wishes regarding distribution of property through an individual named within the will to be the Executor of the estate. The Court will then issue Letters Testamentary or Letters of Administration to the Executor or Administrator empowering them to represent the estate and pay bills, sell property on behalf of the estate under the Court's review.
Probate Intestate
When a person passes without a Will they are said to be 'Intestate' or having died without giving a 'testament' as to their wishes after their death. Depending upon the value of the deceased estate, probate may or may not be required, except for real estate. In the case of real estate if the property was passed to a Living Trust or was owned in joint tenancy with another individual probate is not required. Typically, a surviving spouse will inherit the estate and this will usually not require probate.
Many valuable assets don't go through a will and aren't affected by intestate succession laws. Here are some examples:
- Property transferred to a living trust
- Life insurance proceeds
- Funds in an IRA, 401(k), or other retirement account
- Payable-on-death, or Transfer-on-Death, bank accounts, or
- Property owned with another person under joint tenancy.
These assets will pass to the surviving co-owner or to the beneficiary, whether or not there is a will.
Probate Testate
A person that dies with a Will they are deemed to die 'testate.' Probate is required in Texas when someone dies with assets greater than $75,000 in their single name, whether they have a will or not.
The following steps are typical to the probate process and an attorney should be consulted to guide the named Executor or Administrator through the process.
Step 1 - The probate process begins when the Court is petitioned to review the will and determine it to be valid. The court must be local to where the deceased lived. If the Executor resides out of state (or even in a different city), they will need to confirm that they are able to lead the process.
Step 2 - All heirs and beneficiaries listed in the will must be notified that the probate process has started the date of the probate hearing.
Step 3 - After the local court has been petitioned, and the will validated, the estate must be inventoried. This can be a complex and time-consuming project as not only must the estate be inventoried but many of the items appraised. For instance, heirlooms, antiques, automobiles, real estate, art and other real property, in addition to investment, savings and checking accounts must be cataloged.
Step 4 - Next is gathering important documents needed to move forward in the process. These documents typically include:
- Estate: planning documents: will, burial and funeral arrangements, living will, power
of attorney, advance medical directive
of attorney, advance medical directive
- Assets: stocks, bonds, other properties, cars, deeds, life insurance, bank statements
- Debts: Notification to creditors and pay legitimate claims.
- Income: Tax Returns: Any past due or current tax returns will have to be prepared and filed and inheritance tax accounted for in the appropriate filing.
An important part of finding all of the documents and taking inventory of the estate is ensuring that everything is reported accurately to the Court. This includes identifying and notifying all legitimate creditors, like credit card companies.
Step 5 - The final step is legal transfer of assets to beneficiaries. This only takes place after bills and creditors are paid out of the estate. Assets may need to be sold to pay creditors or in some cases the inheritance tax. This often involves selling the family home or other property.
A surviving spouse may decide they do not wish to live in the home and desire to downsize or they decide to remain and refinance the property, many times using a Reverse Mortgage. This FHA type of loan can help with refinancing the home without having to qualify the traditional way (you only have to qualify on the taxes, insurance and HOA), and/or purchasing a new home (‘Reverse For Purchase’) without any future payments.
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8 Things That Add Delays To A Probate Case
Probate can be legally avoided or minimized through various means, but many people don’t realize it. They fail to make estate plans so their assets end up at the mercy of the court.
To make matters worse, probate can take on a life of its own, dragging on for many months or even several years for some estates. A multitude of factors can contribute to a long and drawn-out process, from choosing an inept executor to the nature of a decedent’s assets.
Estates With More Than a Few Beneficiaries
Estates with more than two or three beneficiaries typically take longer to settle through probate because it takes longer to notify each and every beneficiary about what’s going on. And letting them know what’s going on is a legal requirement during administration.
Many documents must also be signed by every beneficiary, and there are invariably one or two who need prodding and more than one or two reminders to return their signed documents to the estate’s attorney or executor of the estate.
When Beneficiaries Live Some Distance Away
Multiple beneficiaries who are spread all across the U.S. will be more difficult to deal with, even with modern technology. The time differences and expensive overnight mail service will definitely take a toll on the estate administration if a beneficiary is located outside of the U.S.
Beneficiaries living at a distance are said to be the No. 1 reason why the probate process sometimes gets held up.
Estates With Assets in Various States
Multiple probate processes can be necessary when a decedent leaves property in more than one state.
For example, a decedent might have lived in Nevada but also owned real estate in California and mineral rights in Oklahoma. This can require that ancillary probates be opened in California and Oklahoma, in addition to the primary proceeding in Nevada.
Juggling additional proceedings generally takes a good bit more time.
Estates That Have to File Estate Tax Returns
Estates that are required to file IRS Form 706, the federal estate tax return, will undoubtedly take longer to administer than estates that don’t have to file such a return. On average, the IRS won’t even begin to process an estate’s Form 706 until three to four months have passed since the return was filed.
An estate that must file Form 706 can’t close until it receives an official, written nod of approval from the Internal Revenue Service.
It can then take another three to four months for an actual person to look at the return. This means that the probate administration will remain in limbo for at least six to eight months while the IRS does what it needs to do.
Another two or three months can go by if there’s a problem with the return and the IRS requests additional information or documentation. Now we’re up to 10 months to a year since the return was initially filed.
An estate might be required to file a state-level estate tax or inheritance tax return even if it isn’t required to file Form 706 at the federal level. This can also delay the probate process.
Estates With Unusual Assets
Estates that own property that’s difficult to value will take longer to probate. Examples include rare collectibles, racehorses, oil or mineral rights, or patents.
An asset that’s difficult to value can dovetail right into the other reason why probate takes so long—the estate has to file an estate tax return. The estate’s executor or administrator and the IRS have been known to have widely divergent opinions of the true value of unique assets for estate tax purposes.
An asset that is highly illiquid can cause the estate to remain open until the asset can be sold. Otherwise, one or more creditors or beneficiaries of the estate might be forced to take over ownership of that undesirable asset.
When Beneficiaries Don’t Get Along
Nothing can drag out the process like a good old-fashioned family feud. The personal representative can be forced to go to court to get permission from the probate judge to perform every little task when beneficiaries don’t get along.
One or more of the beneficiaries will often hire their own attorneys in these situations. Those attorneys will then proceed to question anything and everything, and that invariably brings the probate process to a grinding halt for a while.
It can literally take years for the legal mess to play out and for the validity of the will to be established if the will ends up being contested.
When There Are Too Many Wills
It’s not unheard of for a decedent to leave a last will and testament without stating explicitly in the document that it replaces and revokes any will made prior to that time. Should an heir or beneficiary pop up brandishing another will with better terms, it might not be immediately clear which will should supersede the other.
This will almost certainly result in a will contest so the court can figure it out. Settling the estate could be delayed for a year or more.
The Wrong Executor
Choosing the wrong someone to act as executor can cause the process to drag on and on. Nominating someone who isn’t good with money, who’s disorganized, or who’s just very busy with their job or family can be a recipe for disaster.
This type of person generally won’t be able to handle all the responsibilities and duties that go along with guiding an estate through the probate process and settling it.
The Bottom Line
Unfortunately, many of these reasons are beyond the control of the executor and the probate attorney, if the estate has one. Very little if anything can be done to speed things along in these situations.
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ALTERNATIVES TO PROBATE
There are several alternatives to probate for handling specialized situations. A probate attorney can help you decide which process is best for your situation and effectively transfer the loved one’s real estate. Remember, in most cases an estate valued at less than $75,000 MAY BE exempt from probate; however, a probate attorney should be consulted to ensure that there is nothing that would cause even a portion of the assets to require probate. The processes that can be alternative to probate are:
- Probate as a Muniment of Title only;
- Small Estate Affidavits; and
- Affidavits of Heirship.
Muniments Of Title
If the deceased had a Will but did not have any creditors whose loan secured real property they owned, the family can probate the Will as a Muniment of Title. This process is simpler than the probate process.
Similar to the probate process, once the court determines the validity of the Will, the court will have a hearing on the Muniment of Title. A court can then approve a Will as a Muniment of Title to pass title of the real property to beneficiaries and no administration of the estate required.
Small Estate Affidavits
If the individual passed without a Will (intestate), and the total value of the estate, not including the decedent’s homestead, is less than $50,000, the family can file a Small Estate Affidavit in the probate court. This process is far more economical than the probate process. However, there are many limitations and appropriate legal counsel should be consulted.
Affidavits Of Heirship
An Affidavit of Heirship is usually used when someone dies without a Will and the estate consists primarily of real property titled in their name. An Affidavit of Heirship vests defeasible title from the decedent’s name into the names of the heirs without having to go through the probate process. The family (or their attorney or title company) files the Affidavit of Heirship in the deed records of the county where the real property is located. The Affidavit creates a clean chain of title transferring the real estate to the decedent’s heirs.
The Texas Probate Code contains certain legal requirements for Affidavits of Heirship. The family may wish to seek the advice of a Texas probate attorney to ensure that all of the requirements are met, and that the real estate title passes smoothly.
A Guide To Selling Your Inherited Home
And Navigating Probate
This book specifically details the process, choices and roadblocks that occur when someone inherits a home. You will learn how to navigate the hurdles of probate, selling the estate, major financial and lifestyle transitions for Seniors and how to deal with estate sales, attorneys, executors, estate planners and financial advisors.
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