1. 2018 TEXAS ADVANCED PARALEGAL SEMINAR

2. PROBATE AND PROBATE ALTERNATIVES
What is Probate Court?
What is the Probate “Process”?
But what if I do not want to go to Probate Court?!

3. What is Probate Court? Tarrant County (Where I am from!!)
Statutory Probate Court Number One
Judge Steve King (Retiring Dec. 31, 2018)
Statutory Probate Court Number Two
Judge Brooke Allen
Jurisdiction and Venue over matters related to Decedent’s Estates (with a couple of exceptions)
Not a Criminal Court…………

4. What is Probate Court?
Determines the Validity of a Last Will and Testament
Appoints Personal Representatives of Estates
Determines Heirship
Determines questions of law as the law relates to the Last Will and Testament, Trust and property.
And much more

5. What is the Probate “Process”?
We are assuming the Decedent died with or without a Will and there is a necessity for an administration:
Retain an Attorney (Fiduciaries in Texas must be represented by counsel in Court)
File either Application to Probate Will or Application to Appoint Administrator and Determination of Heirship

6. What is the Probate “Process”?
In most circumstances, when you file a Will for probate you do not need to notify beneficiaries until AFTER the will has been admitted to probate
However, if Decedent died without a Will, then the court will require consent of the alleged heirs prior to appointing a specific person as administrator*
*NOTE: CONSULT COURT REGARDING NOTICE REQUIREMENT

7. What is the Probate “Process”?
Independent or Dependent Administrator
Did all alleged heirs consent?
Debts?
Any other issues?
If Independent, then:
File Inventory w/t 90 days
File Notice to Creditors
File Notice to Beneficiaries (if not already required)

8. What is the Probate “Process”?
If Dependent, then:
Court permission to spend estate cash
Court permission and approval to sell estate property
Court permission to make distributions
Court permission to pay debts
Plus:
File inventory, notice to creditor, notice to beneficiaries and annual accountings (until the estate is closed)

9. What is the Probate “Process”?
In a situation where you have a valid will but no necessity for administration then you can file the Will for probate as a Muniment of Title.
Primary Requirement:
No unpaid debts, other than debt secured by a lien on real estate;
Check for Medicaid Estate Recovery Claim

10. What is the Probate “Process”?
No Administration necessary but No Will??
Heirship Determination:
Court determines who the heirs of the Decedent are and property passes to the heirs pursuant to the laws of the State of Texas
Attorney Ad Litem appointed to represented unknown heirs (including minors and incapacitated persons)
Court does not determine the nature of the property with this type of hearing (only heirs)

11. But what if I do not want to go to Probate Court?!
Small Estate Affidavit
Value (excluding homestead and exempt property) does not exceed $75,000.00
30 days since date of death
No application for administration has been filed or granted
Must exceed known liabilities (except for liabilities secured by homestead or exempt property)
Sworn to by two disinterested witnesses

12. But what if I do not want to go to Probate Court?!
Small Estate Affidavit (cont’d)
Must be sworn to by each distributee who has legal capacity
List of all known assets/liabilities
Name and address of each distributee
Relevant family history facts
NOTE: CONSULT COURT FOR PROCEDURE
SOME COURTS REQUIRE HEARING (MAYBE?)

13. But what if I do not want to go to Probate Court?!
Affidavit of Heirship
Recorded Statement of Facts
Concerns the identity of the heirs
Established as prima facie evidence of Heirship if:
Statement is contained in an affidavit and sworn to; and
Affidavit has been on record for five years or more in the deed record
Typical practice:
One interested party and two disinterested parties

14. But what if I do not want to go to Probate Court?!
Affidavit of Heirship cont’d
Title companies will require these in lieu of letters of administration
Can also be used to transfer title to motor vehicles
See DMV website

15. But what if I do not want to go to Probate Court?!
Transfer of Death Deed
Individual may transfer his/her interest in real property to one or more persons effected on transferor’s death
Deed is Revocable (regardless of contrary language)
Non-testamentary (not a Will)
Capacity to execute = capacity to execute a contract

16. But what if I do not want to go to Probate Court?!
Transfer on Death Deed cont’d:
Power of Attorney may NOT created a transfer on death deed
Requirements:
Essential elements and formalities of a recordable deed;
State that the transfer is to occur at the transferor’s death; and
Be recorded before the transferor’s death in the deed records in the County where the real property is located.

17. But what if I do not want to go to Probate Court?!
Transfer on Death Deed cont’d
Do not have to give notice to the intended beneficiary or consideration
Deed can be revoked
A Will may NOT revoke a TODD
Divorce will revoke a TODD
Designated beneficiary must survive decedent by 120 hours
Does not eliminate a lien secured by the property

18. But what if I do not want to go to Probate Court?!
Bank Accounts/Brokerage Accounts/Insurance Policies
Designate a beneficiary
Joint Tenancy with Right of Survivorship
Keep them updated as beneficiaries may pass away and then your account will be subject to the probate “process”
Keep in line with your estate plan (Will/Trust)
Hare v. Longstreet, 531 S.W.3d 922 (Tex. App. - Tyler 2017)!!!!!!

19. But what if I do not want to go to Probate Court?!
Intervivos Trust
Created to hold real and personal property for the benefit of Settlor/Trustor (person who creates trust) or another person
Property in the Trust passes outside of probate and pursuant to the terms of the Trust
Trustee is appointed to administer the property in the Trust for the benefit of the beneficiary
May be irrevocable or revocable

20. But what if I do not want to go to Probate Court?!
Intervivos Trust cont’d
Traps:
If you do not put all of your property into the Trust then you might have to probate your Will
However, can create a “pour-over” will
Trustee is a fiduciary and can step in to some unwary traps

21. Questions/Thoughts?