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.
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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