Estate planning usually involves an individual and a competent estate planning attorney who drafts a Will or Revocable Trust Agreement, or both, according to a person’s desires and that Will is then signed before two witnesses and the Testator designates an Executrix or Executor who will carry out the wishes of the Testator upon his/her passing.
In the Will, a person will devise and bequeath their property to loved ones, family members, charities, pets or friends. The Will can also direct that a Trust, either as a separate document or included in the Will, be established.
When the person who signed the Will passes away, Probate of that Will is required in order for the Executrix or Executor to change title of the property in the estate from the deceased to the name of the estate, and then eventually to distribute the property to the heirs under the Will. If there had been a Trust established earlier, then the Will may be used to make that Trust irrevocable and to confirm that the property held in the Trust estate be distributed as per the terms of the Trust. Before Probate can occur. Heirs of the Will or the Executrix or Executor (or both) will hire a competent Estate Planning attorney or a Probate attorney to draft and file an application to enter the Will into probate along with the original Will with the Probate court and this action is called “Probating a Will.” During the Probate process, a court will validate the originality of the Will and the court will direct other necessary pleadings that will need to be filed in order for the Executrix or Executor to receive Letters Testamentary and to distribute the estate of the deceased. Each of the Heirs under the Will, through the Probate attorney, will receive a copy of the Will and the terms of the Will are then explained to each of the Heirs.
During the Probate process the Probate court will ensure that the estate is properly distributed and that it is done in an organized manner and the Probate attorney will also supervise the process and ensure that everything is being done in accordance with the deceased person’s desires. The Probate process usually lasts between four and eight months, however, it can extend over several years if the Beneficiaries of the Will or estate are contesting the Will in any way or there is a large estate to be distributed. At the end of the Probate process an Inventory will be filed and closing documents will be drafted and filed with the Court. Further, in that the Probate process is very complicated, many states such as Texas, will not allow an Heir or the Executrix or Executor to be a pro se litigant. A Probate attorney must be hired to Probate a Will and the costs of hiring a Probate attorney can be distributed through the deceased person’s estate.
After the Will has been filed with the Probate court and the Probate process begins, and although most Probate processes go smoothly, there are five common issues that may arise during the distribution of assets delegated in the Will and during the Probate process:
• The property that was devised and bequeathed is no longer available. This occurs when for instance: “In his Will, the deceased, Uncle Joe, leaves his nephew William his 1960 Oldsmobile with VIN #….. Unfortunately Uncle Joe sold the car 5 years before he passed away. William is very upset.” When this occurs there is nothing that William can do and there is nothing that William can inherit and the Executrix or Executor of the Will does not have to compensate any Heir for any item no longer available as set forth in the Will.
• A Caveat drafted in the Will prohibits an Heir of the Will from being granted property or something of sentiment or of value, if they contest the Will. This provision protects against an Heir of the Will who disagrees with the Will. If they disagree, the Caveat kicks in and will usually result in the immediate pause of the Probate process. This caveat will usually occur through the Executor or Executrix and be enforced through the Probate court. The Caveat can be in place for six months, or until the parties can find common ground and come to a resolution or they can stall the proceedings until a hearing is held and a probate Judge decides on the issues.
• An Heir will want to refuse to accept property bequested to him under the Will. This problem often arises when an Heir wants to mitigate the liability of inheritance tax. Mitigating the liability of inheritance tax is the job of a competent Probate lawyer. They can assist with drafting and filing a Deed of Variation (aka Disclaimer of Interest) so that another family member might inherit the property who might pay much less in tax.
• The deceased owns a home in another country or state. Probate must be filed either where the person passed away or where the deceased person’s property is located. The Probate process can be complicated and having property in different countries or states can complicate the Probate process and it may even require Probate actions to be filed in different countries or different states. And laws can vary in different countries and states. Using a competent Probate Attorney will ensure that the deceased person’s property is properly distributed.
• A disagreement arises regarding a property when two parties have inherited it. When two or more heirs inherit a property many questions will come up as to what to do with the property — one heir may want to keep it while another may want to sell it. Proper estate planning can eliminate this dilemma; however, a Probate attorney can work with the heirs to ensure that the heir wanting to keep the property can while the one that doesn’t can get compensated for the benefit that they derive from the property. Working together to jointly agree on a solution is the best outcome and the least expensive.
• Before a Probate action can be approved, sometimes inheritance tax must be paid. Who is going to pay this tax and is a tax owed? A competent Probate lawyer or an Estate Planning attorney, in conjunction with the estate’s CPA, will be able to determine how to set up a Will to minimize inheritance tax and they will be able to estimate how much, if any, inheritance tax will be owed. Inheritance tax can become an issue if the funds are not readily available through the estate to pay the tax. Not being able to pay inheritance tax can cause a delay in finalizing the Probate process and distributing the estate of the deceased. In some cases, an Heir or the Executor or Executrix may choose to borrow money or take out a bank loan in order to pay off the inheritance tax and then, at the close of the estate that money can be repaid by receipt from the property left in the estate.
If you are in need of a Will or an experienced Probate lawyer who can protect your assets through the Probate process; by preparing and filing all documents that are required by the Probate court or if you need a Trust set up to protect assets or for other legal matters, please contact the probate lawyers or estate planning attorneys at Goldstein & Scopellite, PC. Goldstein & Scopellite, PC, is located in Dallas, Texas and was established in 2002. For more information, see our local listing in D Magazine.
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