Houston Probate Lawyers
Our attorneys represent clients in probate litigation in Houston and throughout Texas. Our firm has argued cases in the four statutory probate courts in Harris County and the courts at law in the surrounding counties of Fort Bend, Galveston, Montgomery and Jefferson County. Our aim is to get a settlement in our clients’ favor whether it is out of court or at trial.
We handle a range of Probate Litigation cases:
- Will Contests;
- Intestacy when someone dies without a will;
- Improper Estate Administration by an Executor;
- Investigating non-probate assets and payable on death designations.
Our lawyers have seen many situations where it is in your best interest to contest a will:
Grounds for Contesting a Will
A Testator (the person signing the will) must be of sound mind when they are executing a will, they cannot be forced to sign or change a will. Changes to a will late in life should always be questioned. The person who wrote the original will may now be under the care of others, lack the capacity to amend the will or be under the influence of a family member or close friend who does not have their best interests at heart. Even after a will has been probated you may still be able to challenge it. If these relationships are used as a way to change a will our lawyers can assist you in bringing litigation.
- Fraud, we’ve seen cases where wills have been altered fraudulently and the Testator has been coerced to the benefit of the person orchestrating the changes. The intent is generally to divert a larger portion of the estate to themselves or another beneficiary;
- Forged wills, the most egregious of acts occurs when forgery is used to alter or create a will.
- More than one will, we have seen many cases where more than one will is purported to be the legal and properly executed will. Our lawyers have the experience to identify what is right and get proper the will enforced during the Probate proceedings.
How To Create a Will In Texas
No matter the value of your financial assets, everyone should have an estate plan to determine how assets will be distributed upon their death. Failing to do so means that the state government makes that decision for you. The more you own, the more this becomes a pressing concern because new laws and regulations will continue to significantly affect your estate and thus how your wishes are carried out upon your death. Failing to set forth your plan in a will ultimately results in long-term expensive battles for those you care about and leave behind.
Your first step is to meet with an experienced estate planning attorney in order to ensure that your will is executed properly and in accordance with state laws. In order to prepare for and as part of this meeting, you will want to think about—and possibly even discuss—certain issues with your loved ones; These issues include:
What Property Will be Included in Your Will?
Make a list of assets you will want to leave in your will, and those that will need to be provided for via listing beneficiaries elsewhere (for example, your 401(k)). Note that married couples can only leave those assets that they jointly own; there will need to be separate wills to address separate property owned by each spouse.
In deciding to whom to leave property, do not forget to include both first choice and contingent beneficiaries in case your first choice beneficiaries do not survive you.
How to Choose an Executor For Your Will
The executor you choose should not just be anyone close to you; ideally, it is someone who has some financial know-how, as well as some knowledge of the law, if possible. Perhaps most importantly, make sure you discuss it with them and that they are comfortable serving as the executor. Your executor should also be informed of how to access the will when the time comes in accordance with the will being stored safely.
Guardians for Children and Their Property
If you have children under the age of 18, you will need to designate a guardian in the event that either parents die and/or one or both become incapacitated. You will also need to appoint someone to manage their inheritance. You can discuss exactly how you want to do this with your attorney (i.e. whether to designate them as a trustee, property guardian, etc.).
Signing The Will
Once you have consulted and drafted your will with the assistance of an experienced estate planning attorney, you will need to sign it in the presence of witnesses and notarize the document, as well.
Continuous Estate Planning is Essential
Life is continuously changing, and thus your will needs to be updated on a regular basis, especially given that laws and regulations change. Revisiting your will ensures that your family is protected and that taxes are reduced or eliminated.
Dying Without A Will
Dying Intestate is a legal term describing the situation where a person dies without a will. In this situation the probate courts in Texas would look to the children and family of the deceased to name an administrator for the estate. One of the following types of administrator would be named:
- Independent administrator has a fair amount of leeway and freedom in making decisions regarding the assets in the estate;
- Dependent administrator is prohibited from taking any action on the estate without court approval;
- Temporary administrator is assigned by the court in situations where the beneficiaries cannot agree on an administrator in order to move the probate process forward. This can occur in cases where the will is being contested. Once differences have been resolved a dependent or independent administrator will take over these duties.
When there is no will the estate’s administrator must identify all of the assets that are owned by the deceased. These assets could include:
- Real Property, such as their primary residence, a vacation home or a ranch;
- Investment Portfolios, stock, bonds and mutual funds;
- Financial assets, bank accounts and life insurance policies.
The executor must ensure that an estate’s assets are fully identified, validated and appraised. When assets are liquidated there must be a paper trail and the executor must be completely independent of the transaction. If you are a beneficiary in an estate and you think the assets have been mismanaged contact our Probate Litigation attorneys. We can perform an audit of the estate and if we find evidence of fraud it will have an impact on your share of the estate.
Executors of an estate have important tasks to handle and they must be done in a timely manner and ethically. If there is a long delay during the probate process this can be an indicator of wrongdoing especially if the executor is also a beneficiary of the estate. If you have questions or have concerns contact Michael P. Fleming & Associates, P.C. today, the advice is always free 713-221-6800.
Non-probate assets and their payable on death designations can have a significant impact on a will. Our lawyers have extensive experience reviewing contractual documents such as life insurance, investment portfolios and other financial assets. If those named as designees were added or changed just prior to the death of your loved one this should be questioned. These designations can be challenged in court and the value can be brought into the will and flow through to the beneficiaries.
Probating a Will in Texas
The Probate process begins with having a court approve the will. Once this happens the executor of the estate will begin the process of liquidating and distributing the assets of the estate. A summary of the entire process is as follows:
- The court approves the probate petition;
- Assets are identified, validated and appraised;
- Creditors and Taxing Authorities are paid (negotiations for reductions), creditors and heirs are notified that the will of the decedent is in probate which gives creditors an opportunity to raise a claim against the estate. Creditors have 4 months to do this and failure to do so results in them being barred forever from making a claim unless they are a secured creditor or a taxing authority.
- Final accounting of assets is submitted to the court for approval;
- Assets are distributed completing the probate process.
The process usually takes about 6 to 9 months if there are no disputes or challenges to the will.
If you have any questions about probating a will or an issue with an estate contact our probate attorneys 713-221-6800.