Speaker 1: 0:09

Welcome back to the Texas Family Lawyer podcast. Today I am happy to be joined by Brie Holcomb, associate attorney at Hunt Law Firm.

Speaker 2: 0:17

Thank you for having me.

Speaker 1: 0:18

So usually in our podcast, we talk about all things family law, divorce, custody, adoptions, name changes, child support.

Speaker 1: 0:26

Today we're going to be discussing something a little bit different, and for a reason we're going to be discussing probate and everything that Texans would need to know about probate. And the reason why is because, as of this month, upon release, we're going to be opening our probate practice where, as a value added service for our current clients and for new clients, we wanted to add this service because we have folks that will come to us, that have formed a relationship with us and that will have somebody in their family who's passed and they trust us. And they trust us and we wanted to provide this service to them to help them get through the loss of a loved one with as little stress as possible. So Bree will be leading up our probate section and I'm happy to have you here today. Thank you. A lot of family lawyers don't know a lot about probate, even though they are very related to family law, but tell us just generally a little bit about what probate is and what it means.

Speaker 2: 1:32

Yeah, so probate is the process that we go through when someone passes away to administer their estate, meaning, get property to where it needs to go, follow the directions of the will and ensure that all of the decedent, the deceased person's assets, are accounted for and then distributed.

Speaker 1: 1:47

Okay, so somebody in your family passes away. They've got bank accounts, they've got a house, they've got a car, they've got a watch that was given to them from their grandfather. Does all of that have to pass through probate?

Speaker 2: 2:04

So it really just depends. What we would do is we talk to each client and evaluate the estate of the decedent. So there are certain probate assets and there are non-probate assets. A non-probate asset is an asset that will be dispersed to a beneficiary because it was either payable on death, transferable on death. For a home, if there was a transfer on death deed, probate's not going to be needed in order to change legal title, because we have a vehicle that has already done that. So there's a couple instances where you know we would need to go through probate and it would be required to administer the decedent's estate.

Speaker 2: 2:37

First, if there's accounts that someone does not have access to. Let's say we have two spouses and there's a separate bank account that was not payable on death and one spouse passed away. If that spouse is not able to gain access to that account, we need to give them a tool and a vehicle to be able to access it and disperse it in manner which the will says. Second, if we have any sort of marital home without a transfer on death deed and this is a really big misconception in Texas law a homestead is not going to pass automatically to the other owner. So, especially in the divorce process. You know we have two owners of a home. They each own that 50-50. That's the same thing for our married couples. If you and your wife own a home together and your wife passes away, you must go through a formal legal process to change title over into your name. It does not happen automatically.

Speaker 1: 3:28

So let me stop you there, because we've talked about this in previous podcast episodes. For quite a while now, we've done estate planning. You're our lead estate planning and now probate attorney. So when folks come to us, they're looking to create a will, but then our simple estate planning package has a number of other documents that are included in it. One of the documents that we frequently tell people that they need to do is called a transfer upon death deed. What does that do and how does that help people in this process the probate process after they pass? How does it make it a little bit easier?

Speaker 2: 4:03

Yeah. So what a transfer on death deed does is it says when I pass away, I automatically give my interest in my home to another individual. So if we have, you know, just a regular family with two spouses and one kid, what we would do is we'd say I one spouse let's just say the husband, for example give my interest in the home to the wife when I pass away. The wife would do the same thing. Then what we would say is okay, now, if both of us pass away, we're going to give this home to our child.

Speaker 2: 4:33

The way that it works is you would have the deed filed and recorded with a county clerk. That's where the deed lives when you purchased a home. That's where the deeds to your home also lie. When someone passes away, what happens is that deed is already set in stone. So when a spouse passes, what you're able to do is follow what's called an affidavit of death, which is a sworn statement saying my spouse really did die, and also provide a copy of the death certificate to the county. And then, boom, automatically you have 100% ownership of that home and also provide a copy of the death certificate to the county. And then, boom, automatically you have 100% ownership of that home and you do not have to go through the probate process.

Speaker 2: 5:12

Okay, unless there's other assets Unless there's other assets, of course, which we devalue.

Speaker 1: 5:15

So that one would need to go through the probate process. And you know, colleagues, that we have that are probate lawyers and clients that will come to us. They want to minimize, we want to minimize the amount of stuff that has to go through the probate process.

Speaker 2: 5:29

That's why planning is so important.

Speaker 1: 5:30

So why is that? Why do we want to minimize what's going through the probate process?

Speaker 2: 5:34

I think that's just what regular everyday people want to do, is they don't want to have to go to probate court. Now it is very different than some other cases that the public may have dealings with, like family law, you can represent yourself in a family law case. You can represent yourself in a landlord-tenant case. In probate court you must have an attorney. So people want to try and avoid probate so that their loved ones don't have to hire an attorney. Probate so that their loved ones don't have to hire an attorney.

Speaker 1: 6:06

However, the Texas legal system especially for probate, is designed to be easy if you planned correctly and took care of your estate, okay. So how do we get as many items as possible to not pass through probate? I know that one of the ways you mentioned is you can have your bank account payable upon death to somebody. Now if you're on a joint bank account with your spouse, then you don't need to do that because they're already on it, but say you're a single person or your spouse has already passed away. What do you have to do to make sure that doesn't pass through the probate process? You go to the bank and you tell them I want this money to go to a certain person when I die.

Speaker 2: 6:43

Yeah, so depending upon your financial institution, most financial institutions allow for payable on death accounts. It's not something that you just get to click around and find. You must reach out to your bank if they don't make it easy for you. For example, I have an Ally high yield savings account. I didn't know that I could make it payable on death, but I was clicking around one day and was able to find that. Get everything updated. So I always encourage clients to review their entire estate. You know, down to retirement accounts, investment accounts, that they have the home, the vehicle. We've got an alternative for the vehicle too, which I can touch on, just so we can evaluate what can pass outside of probate. Most things we can get to pass outside of that process.

Speaker 1: 7:27

Okay, so you have somebody, they're alive, they've come to us or another estate planning lawyer and I can't implore people that are listening to this or watching this go and visit with an estate planning lawyer and get your affairs in order in advance, because doing that is going to save your loved ones a lot of stress and grief and money, because the process takes a while. You don't want them to have to be dealing with chaos in the aftermath of your death. So that process has happened. Somebody has passed away, they have bank accounts that have been paid out upon death, their house has been transferred per transfer upon death deed and now they have a will. They come to us for a probate. What do they need to know and what are we looking for in their will?

Speaker 2: 8:23

So really, what we're doing first at the outset is evaluating whether or not probate is needed. In that example that you gave, probate might not be required. But let's say we have someone come to us and maybe again it's that spouse example where we have a husband and a wife and no transfer on death deed. Well, what we need to do is we would need to start the probate process in order to change legal title over for that spouse that's surviving, so that he or she owns it 100%. So one of the very first things we're looking for, once we identify if probate is necessary, is do they have an original will? Do they have a will just in general? Just in general.

Speaker 2: 9:01

And the way that we handle all of our probate at this point in time is uncontested. So what that means is that I'm looking for a valid will, I want it to be self-proving, I want there to be an independent executor and I want there to be no bond. So let me, let me kind of tell you what those things mean. An original will means the valid original will that the testator signed.

Speaker 1: 9:24

What we call wet signature not scanned, not photocopied.

Speaker 2: 9:30

You know, if they have a copy, that's okay, we can certainly deal with that, but it just kind of. It doesn't complicate the process, but there's just additional steps that need to be taken. And the second thing is that it's self-proving. That means that there is an affidavit attached to the will stating the will is valid and complies with Texas law. It meets the requirements, it has two witnesses, it was signed by a notary, it was signed by the testator.

Speaker 2: 9:56

Again, if we don't have that, there are just additional steps that need to be taken in order to probate the will. We also want a named independent executor. That means the person who is named to be in charge of your affairs is the person who came to me to be the client. And then, third, that there is no bond, meaning we don't have to pay a bond to the court in order for the probate process to begin. Most wills are set up so that all of those requirements are met. Especially if you do an estate planning package with the Hunt Law Firm, we make sure that those four things are there so that we can service our clients on the back end when the time comes.

Speaker 1: 10:32

So you mentioned I mean having the original will does simplify the process a little bit. Sometime I've read, I've gotten on Reddit. I've seen people saying what do I do with my will? What do you recommend that people do with their original will? I've heard of some people like putting it in their freezer in a Ziploc bag, which I don't necessarily understand. Other people will put in a safe, other people will give it to a loved one. What do you recommend?

Speaker 2: 10:57

So I just recommend keeping it in a safe place. That's what you ultimately want to do is have a place where it's safe and where someone knows that it's going to be. If you put your will in the freezer, most people are not going to check that your will is in the freezer when the time comes. So one alerting a loved one of where your documents are I have people store them in gun safes. Are I have people store them in gun safes? That's okay, as long as everybody knows what the password is, because if you can't get into that when someone passes away, it's useless.

Speaker 2: 11:27

No safety deposit boxes, that's a big no-no. I would recommend getting some sort of firebox or some sort of fire bag. That's what I have personally to store all of your documents, and it can be everything from your will, power of attorney, even to your passport or your social security card. I like the idea of a bag rather than a box, so that if something happens and you need to, you're home and you can take it out, grab that bag and then you're free to go and get one on Amazon for like 30 bucks.

Speaker 1: 11:54

Yeah, yeah, they're not expensive, and I've done the same thing, so okay. So you have come to us and I've done the same thing, so okay. So you have come to us. We've found that this is an uncontested case because all of those bullet points are met. What is the first step in the probate process?

Speaker 2: 12:09

Yeah, so the first step in the probate process is going to be filing an application for probate. Essentially, what that means is that we put the court on notice that we're bringing a will to them to probate. So a will and this might confuse some people a will is presumed invalid until it is admitted to probate. That doesn't mean that it's actually invalid, but that's the presumption that the law has. So until it's proved up in the probate court, it is presumed invalid. If someone wants to challenge the validity of that will, they must do so before the probate process begins. Once it's admitted into probate, they're going to have a much difficult burden trying to, you know, overturn that.

Speaker 1: 12:48

So let me, let me ask you this you know, mom has passed away. She lived in Houston and the son is the independent executor. He lives in San Antonio. Where are we filing?

Speaker 2: 13:03

We're filing in Houston. We're going to file at the place where the decedent lived. Often that's going to be the place that they passed away to. But let's say in that example the decedent lived here in Houston. She went to visit her son in San Antonio, passed away there. It's still going to take place in Houston.

Speaker 1: 13:19

Okay, all right, thanks. What's the next step?

Speaker 2: 13:22

After we follow the application with the court, we're going to do what's called citation by posting. That essentially means we're going to post at the courthouse that the decedent's will has been processed and we are going to be admitting it into probate at some point in time.

Speaker 1: 13:39

It's kind of a vestige of days past where the important news was given to the community on the courthouse steps and there's a few things like that in the law where you know when they've, you know, got auctions. It's at the courthouse steps on, you know, a certain day of the month. So I know in Fort Bend County they literally have like a digital computer screen where everything is posted, but it's just different county by county.

Speaker 2: 14:05

Yeah, and same thing, too, goes for the county's process for getting the original will to them. So that's why it's so important again to provide your attorney with the original will, because it has to go to the courthouse and it has to be on file with the court. The clerk of the court is basically the determining individual on whether or not the will is original or it's a copy. It's very important. They have a lot of power and even if we send them an original will and they say no, I believe it's a copy, we have to comply with the steps that they have laid out for us.

Speaker 1: 14:40

Okay, so we've sent the original will to the court. The clerk has determined whether it's original or not. What do we do next?

Speaker 2: 14:48

So once we get the okay, then what we're going to do is we're going to schedule our prove up. But before we can have our prove up we have to send to the court proposed orders. The first is going to be an order admitting will to probate court proposed orders. The first is going to be an order admitting will to probate. That is essentially the document that the judge is going to sign, validating the will and saying this will has been admitted into probate and this case can begin. The second thing that we're going to do is submit what's called a proof of death testimony. That is just laying out jurisdiction requirements and requirements of the estate's code that this will can be admitted into probate. And, lastly, we're going to submit a proposed oath. That is an oath that the executor is going to sign, saying yes, I will carry out basically the wishes of the will. I will comply with the Estates Code in ensuring that all requirements are met Once we file those proposed orders.

Speaker 2: 15:42

They're not signed by attorneys, they're not signed by clients or executors yet. Then the judge will say okay, you can have your prove-up hearing. That's where we go and it's kind of like repeating the same things over again. This is the jurisdiction requirements. We have met them. We can admit this will into probate. Once the judge says, okay, you did a great job, we're going to admit this will into probate. Then they will sign the order admitting will to probate. We will sign the proof of death testimony as well as the oath, and then what happens is we can kind of begin the back half of the probate process.

Speaker 1: 16:17

And I was actually in court on a different case when you were doing one of these. It's a fairly straightforward process once you're actually in court. Correct? Like, how long does this take from the moment that the judge starts talking to you until the moment that you're done? Typically?

Speaker 2: 16:31

Depending upon the case, a client or the attorney can prove up the testimony, so if the attorney is proving it up, I would say it takes less than one minute. In probate court, we have what's called a one-minute prove-up, so that you can get in and you can get out. Sometimes the clients, too, are able to complete that one-minute prove-up If we have a copy of a will. That's going to require additional testimony, so it's going to take a little bit longer. Even then, though, it's not going to be more than a 10, 15 minute process.

Speaker 1: 17:03

Okay, well, very good. Yeah, it's different than family law, because you need your client's testimony and family law to prove something up. Okay, so what comes next? And is that the point, that then the executor can start to take some actions on the estate or there's still additional steps?

Speaker 2: 17:20

Correct. So once the judge puts their wet signature on the order, admitting will to probate, then the executor is able to act. But oftentimes they're not going to be able to do much without what's called letters testamentary, that is, letters that are issued by the court giving this individual or this executor the power to act, to take documents to the bank and say look, I am the executor, it is official. So now I need to get this account, I need to access it, I need to administer it.

Speaker 1: 17:50

So from the moment and of course, lawyer caveat, lawyer disclaimer every case is different. But from the moment that somebody comes to us and says I have a loved one that passed away, here's I have all the. But from the moment that somebody comes to us and says I have a loved one that passed away, here's I have all the documents.

Speaker 2: 18:08

Until the moment that you can go to prove-ups the citation by posting has to be on file for 10 days before you can have your prove-up, so I guess in a best case scenario could it be two weeks. Maybe, but that's probably not realistic, okay, okay.

Speaker 1: 18:33

What's next.

Speaker 2: 18:34

So, after we get the letters of testimony, then what we're going to do is we're going to send notices. These are notices to creditors. The first what we're going to do is we're going to send notices. These are notices to creditors. The first, what we're going to do is send a general notice to creditors, just sending through what's called the daily court review, a publication, basically, of this individual's estate has been entered into probate and if you have a claim, here's your opportunity. We're also going to submit specific notice to creditors for any sort of secured property, that is, property that's going to be backed by some sort of collateral, like a mortgage or a vehicle loan.

Speaker 1: 19:10

So not credit cards, not unsecured loans.

Speaker 2: 19:14

Correct. So we're not sending specific notices to American Express or Chase Visa, correct? That would be part of that general notice to creditors. The burden would fall upon them to go and look and see if they have a claim.

Speaker 1: 19:29

And for those who don't know and most people that aren't lawyers or are involved in the legal field probably don't know this the Daily Court Review is the, I guess, the official newspaper of publications and postings, in the greater Houston area at least, and it's a newspaper that I have only ever seen at the courthouse and at the law schools, and it does have some news articles in it, but the real purpose of this newspaper is to put things like postings in it banks and credit card companies. They are looking through these things, looking for people that maybe owe them some money. They want to know about this and then they want to get in line so that they can potentially get paid. What's the next step?

Speaker 2: 20:19

So the next step is going to be evaluating whether or not we need to do an inventory or if we can do an affidavit in lieu of inventory. So the first question that I'm going to ask is are there any unsecured debts? An unsecured debt is something that's again not secured by collateral, different from a mortgage or a vehicle loan. This is outstanding credit card debt or medical bills. If we have unsecured debt, what we're going to do is we're going to file an inventory of all of our assets. We're going to look at the fair market value of everything that we have, place that on the inventory and file it with the court. If we only have secured debt so a mortgage, for example then what we can do is we can file an affidavit in lieu of inventory, meaning that we do not have to file a formal inventory with the court because we have no unsecured outstanding debt.

Speaker 1: 21:09

Okay, well, that simplifies matters a bit.

Speaker 2: 21:11

Absolutely. Especially if, again, you prepared and you took care of your estate and were able to minimize debts, this process can be very, very simple.

Speaker 1: 21:22

And how are you determining what those if you have to do an inventory, how are you determining what those values are have to do an inventory? How are you determining what those values are?

Speaker 2: 21:28

The values are going to be the fair market value as of the date of the decedent's death. So we're going to look at what was that value worth at the time this individual passed away. Of course, it can complicate things if you wait a while to do probate, because we're going to have to look back maybe a year or two, but we can make that happen.

Speaker 1: 21:46

Okay. And does probate have to be started immediately upon the person's death? I know you said that's a best practice, but what if somebody waits six months or a year? Is that okay?

Speaker 2: 21:57

It's absolutely okay, and what we want to do first is make sure that you're taking care of yourself. You know this is a hard process, especially losing a loved one, so don't feel the need to jump in. If, for some reason, you don't have access and it's becoming detrimental, then yes, we want to start that process. But you can actually file into probate up to four years of the date of the decedent's death.

Speaker 1: 22:20

We don't recommend waiting that long. Sure, no. And I know that sometimes we've had clients that have thought that everything was able to pass outside of probate and then they realize, oh, there's another account that didn't pass outside of probate. Then they have to start the process and so that might be the reason for the delay, right, okay? So that is that, the complete probate process. What do we do next?

Speaker 2: 22:44

Once we either file the inventory of the affidavit in lieu of inventory, what we're going to do is we're going to file an affidavit of 308 notice to beneficiaries. That's just going to state to the beneficiaries the will was admitted into probate. You want to put along a copy of the order admitting will to probate, and a best practice would be to provide the inventory as well. Once that has been completed, then we can move into actual administration of the estate, so paying off debts, giving property to those individuals who are entitled to it under the will.

Speaker 1: 23:16

Okay, what do we do next to actually administer the estate? So, once all that's done and now it's time to take care of business, close everything out, move funds. What does the executor, the person who's come to us, our client, what do they need to do next?

Speaker 2: 23:33

So again, that's just going to depend upon the type of estate that they have. Let's say, we have did an affidavit in lieu of inventory, we only have a mortgage and the spouse is. It's that situation where one spouse passed away and one is living. In that instance what we would do is we would prepare, basically, an executor's deed that gives the interest of the estate to that spouse so that they have that property 100%. That's just one thing that we do. It also allows the individual to start paying off any debts or any claims that are owed. You know, first is funeral expenses. That is something that an individual is entitled to be reimbursed for if they paid that out of their pocket from the estate up to $15,000. The same goes for last illness expenses up to $15,000.

Speaker 1: 24:26

So, to use the example that I used before, where you have a mother that has passed away, the son is the executor and the son pays for his mom's funeral expenses and their $15,000. He can get reimbursed for that once the probate process has started. Correct, okay, all right, great, and then. So what happens next? You've got a credit card, you've got a student loan, you've got a mortgage that needs to be paid. Who's getting paid and in what order? Because there's got to be some sort of order to it, otherwise everybody's just going to be clamoring over the money that's left in this estate, so one.

Speaker 2: 25:06

It depends on the types of claims that were filed in the estate. So a creditor basically bears the burden to file and say, hey, someone owes me money. The estate's code lays out the order in which claimants are to be paid, so I've got them listed because I do not have them memorized. The first is going to be any sort of estate administration and estate management expenses. That could be things like paying for an attorney to come and work this for you, and those can be reimbursements the vehicle loan After that child support.

Speaker 2: 25:45

That's something that family law you know is an intersection of probate. If your ex-husband passed away, he was paying child support and you are still owed and entitled child support, you can file a claim on behalf to get any of that unpaid child support.

Speaker 1: 26:02

Yeah. So just to add a little bit, put a little bit more on that Say the child is six years old and the obligor say it's the father passes away, how would you calculate the amount that would be?

Speaker 2: 26:19

owed in child support, based upon what they are currently paying now versus how long that obligation is going to be. So if they have a 17-year-old, it's until that child reaches the age of 18 or graduates from high school. The same would be if they have a 5-year-old. How much money is it going to take for this child to reach 18 or graduate from high school, whichever comes later?

Speaker 1: 26:42

Okay and I can't stress this enough that if you are an obligee meaning you are a surviving parent and you were owed child support during the life of that child, you have to make a claim for that money. Don't expect that anybody is going to say well wait, there's a child here and there's a mom or dad that still needs to get paid that child support. You've got to preferably get a lawyer, but you've got to make a claim there, stake your claim to the money so you can get in line. Otherwise nobody's going to be doing you any favors.

Speaker 2: 27:13

Absolutely.

Speaker 1: 27:14

What's next? Who's next in line?

Speaker 2: 27:16

So next in line are just a bunch of other unique, I would say, types of claims, but the catch-all is going to be any other unsecured claims, that's the absolute last that's going to be paid out. So credit cards, medical bills, any other debts let's say I loaned you money that would all fall within that.

Speaker 1: 27:37

So American Express Visa MasterCard, they're getting paid last. Right, you're getting paid child support before you pay in Visa, Exactly Okay, well, I appreciate that. Is there anything else on the process that we missed? I don't believe so.

Speaker 2: 27:49

Of course, there can be different nuances depending upon the estate, depending upon whether or not you have the original. Will you have a copy? It's not signed by witnesses. We can handle pretty much all of those things as they come. So just know that maybe some of these things don't apply. There are some nuances that you just have to look out for.

Speaker 1: 28:10

So if somebody's going to you know they have a loved one that passed away, they come to Hunt Law Firm. They call our office. What can they expect in this process? Is there anything unique that they should understand what the process is going to be like from the moment they pick up the phone or write a message on our website to get in touch with us?

Speaker 2: 28:26

Yeah. So what we're going to do is we're going to evaluate on the outset whether or not it's contested. So that means our intake team is going to ask a set of questions. In the event that the answers are no, or you know they don't meet our structure, we would then need to refer you to another attorney, but someone will be able to help you. It might not be our firm, but we can get you in touch with someone.

Speaker 1: 28:47

Okay, wonderful. Well, I appreciate you explaining this. This is a really important area that we're breaking into and I know it's going to be a really important added service for our clients, and I know we talked about this off camera before. But we just enjoy helping people that are in need in our community, whether that be Katy or League City, cypress or Sugar Land, where we work in the community, we live in the community and it makes us enjoy our jobs that, when somebody comes to us and is in need and doesn't know where to go, is that we can be that person that can give them not only the legal expertise but also the compassion to help get them through the process. So I'm glad you're taking this on.

Speaker 1: 29:34

I appreciate you explaining this and if anybody out there does have any other questions, you're welcome to leave a comment on this video. You're welcome to give us a call at 832-315-5494. Our website is familylawyerkatiecom and you're welcome to leave a message on there and we could set up a consultation and we can talk a little bit more about the probate process or, if you have a family issue, we can talk about it there. Our website also has a ton of information about not only probate matters, but also family law matters as well. So check that out, check out all the resources we have on our website. Brie, again thank you for joining me.

Speaker 2: 30:13

Thank you.

Speaker 1: 30:14

All right, until next time, thanks everybody.