By the Estate Planning Attorneys at Smith & Garg, LLC, serving The Woodlands, Spring, Houston, Conroe, Humble, Kingwood, Tomball, Cypress, Huntsville, Westchase, Southwest, Sugar Land, West Oaks, Alief, Memorial, River Oaks, Stafford, Katy, and Missouri City.

PROBATE

When you find yourself in the difficult and often overwhelming position of losing a loved one, having a trusted attorney by your side to help you navigate through the Texas probate system will prove to be invaluable. The Houston Probate and Estate Administration attorneys at Smith & Garg offer the experience, the integrity, and the understanding that you require and deserve under such unfortunate circumstances. 

At Smith & Garg, we understand that the death of a family member or friend brings not only grief, but anxiety, uncertainty, and many questions as to what needs to happen next. In a time of such difficulty, many loose ends must be tied and affairs tended to. The procedures for administering a deceased loved one’s estate can be daunting if they are attempted without the help of a qualified probate attorney. We invite and encourage you to call upon us during such a time of particular need, to guide you through the days and months ahead and assist you in administering and closing the deceased’s estate in a manner as timely and least burdensome as possible.

Many view the probate process as confusing, expensive, and lengthy. In many U.S. states, this can be true. Fortunately, in Texas we are provided a relatively streamlined process, often with only a few weeks between application and full administration of an estate. Court fees are generally minimal; therefore, with the guidance of an experienced probate attorney, wrapping up an estate need not be as emotionally nor as financially burdensome as in other states. In addition, Texas provides for several alternatives to a traditional probate proceeding, allowing for even more timely resolution and often even less cost. Since a variety of probate options are available, it is of the utmost importance that, when faced with the death of a loved one, you consult with the Houston probate attorneys at Smith & Garg to discuss the circumstances of your particular case. We may not only guide you through the typical probate proceedings, but may suggest ancillary procedures to lessen expense and expedite resolution of the legal process if the circumstances of the estate allow.

At Smith & Garg, our experienced Probate and Estate Administration attorneys are available to discuss and explain a multitude of legal aspects of probate, including but not limited to:

• Texas Probate. In a general sense, the term “probate” refers to a court’s determination and declaration of the validity of a deceased person’s Will. More broadly, “probate” is the legal process of making a court aware of a person’s death and getting the court’s approval to administer his or her estate. The need for a probate procedure arises when an individual has passed away, and his or her assets need to be legally transferred to either the individuals named in a Will, or if no Will as left, to the individuals entitled to such property under Texas’ default intestacy laws. Since the State of Texas offers a relatively straightforward and efficient manner of administering estates, the process need not be overly lengthy nor expensive. The Texas Probate attorneys at Smith & Garg will counsel you regarding the available probate procedures so that you may, during this overwhelming time, quickly and painlessly tie the loose ends of a decedent’s estate.

• Appointment of Executor. A key aspect of an individual’s Last Will and Testament involves appointing an Executor to administer his or her estate. The Houston probate attorneys of Smith & Garg are available to counsel that appointed Executor with regard to his or her legal obligations under the Will. Learning that you have been appointed as an Executor can be bewildering if you are not equipped with a thorough understanding of the duties and procedures ahead of you. Our probate attorneys will ease the Executor’s mind by both educating and guiding him or her through the position, from the application for admission of the Will to resolution of the estate.

• Independent Executor. One of the most beneficial characteristics of the Texas probate system is that it allows for the appointment of an Independent Executor. This simply means that an individual may appoint an Executor of his or her estate to act independently of court control or supervision. Although there are certain administrative requirements that all Executors must fulfill, an Independent Executor is afforded great latitude in handling the decedent’s affairs and in administering the estate, without the need to consistently seek the court’s approval for each action taken. The Houston probate attorneys at Smith & Garg are available to counsel an individual selected as an Independent Executor on the particular duties, requirements and extent of freedom involved in the appointment.
• Dependent Administration. If a testator does not make the affirmative election to appoint an Independent Executor in his or her Will, Texas’ default rule is that the administration of the estate be “dependent.” Or, for a variety of reasons, a testator may have chosen not to appoint an Independent Executor, but rather affirmatively opted for a Dependent Administration. A Dependent Administration is simply a manner of administering a deceased person’s estate that involves a higher level of court involvement than an independent administration. It is strongly advised that an Executor serving under a Dependent Administration seek the guidance and counsel of the qualified probate attorneys at Smith & Garg with respect to the more detailed and structured requirements of this type of appointment.

• Letters Testamentary. In a typical probate proceeding, an Executor, with the guidance of his or her probate attorney, will petition the court to admit the deceased’s Will to probate and issue “Letters Testamentary” to the Executor. These letters are the formal, legal documents issued by the court that give the Executor power to take custody and control of, as well as distribute, the deceased person’s property. The letters are proof of authority that the Executor has been formally appointed, and therefore release the holders of the decedent’s property from liability in handing over estate assets to the Executor. Obtaining Letters is a primary objective of the probate, and it is important to discuss with the experienced Probate attorneys at Smith & Garg the circumstances under which they will be required.

• Independent Administration. It is often the case that an individual will pass away either not leaving a Will, leaving a Will that does not sufficiently provide for an Independent Executor, or naming an Executor who is deceased or unqualified to serve. In these situations, the heirs often still have reason to administer the estate, and desire to collectively appoint someone to independently handle the estate’s affairs as could have been done had an Independent Executor served. A method for accomplishing this result is petitioning for an “Independent Administration,” which is a procedure allowing for the appointment of an Independent Administrator, rather than an Independent Executor, to preside over the decedent’s estate. Special requirements must be met in the application to probate in order to achieve an Independent Administration, and thus it is strongly advised that you visit with Smith & Garg’s qualified probate attorneys to discuss this procedure if your situation warrants its use.

• Probate as a Muniment of Title. Probating a will as a muniment of title is an alternative to a traditional probate proceeding. That is, instead of applying for Letters Testamentary, a person with a direct interest in the decedent’s estate may instead submit an application to probate the Will as a muniment of title.  This procedure is used when a Will doesn’t name an Executor; when the named Executor is dead, unwilling to serve, or unqualified to serve; when the beneficiaries of the Will didn’t submit the Will for probate within 4 years of the decedent’s death; or when all that is truly needed is the transfer of real estate and/or personal property from the decedent’s estate, and there is no other real need to manage or administer the estate. The Houston probate attorneys at Smith & Garg are well-versed in the use of Muniments of Title, and are available to discuss with you the requirements and suitability of this procedure.

• Small Estate Affidavit. A Small Estate Affidavit is another alternative to a formal probate proceeding that is most often used when a person dies without leaving a valid Will. If an estate qualifies for the use of a Small Estate Affidavit, the heirs of the deceased person can receive the assets of the decedent’s estate without resorting to an heirship proceeding in the probate court. The court-approved Affidavit will serve as notice to holders of estate property that the decedent has passed away, and that the named heirs are therefore entitled to estate assets by authority of Texas’ intestacy laws. Specific requirements must be met in order for an estate to qualify for this procedure, so it is vital to discuss its use and appropriateness with the probate attorneys at Smith & Garg.
• Proceedings to Declare Heirship. An "Heirship Proceeding," or "Proceeding to Declare Heirship," is the probate procedure most commonly used when a person dies without having executed a valid Will. Its primary purpose is to determine the identity of the decedent’s heirs, as well as the percentage of the decedent's estate that each of such heirs is entitled to take. Following submission of the application, appointment of an attorney ad litem, and a hearing in the probate court, the probate judge will declare the name and address of each heir, and the percentage of the estate that each heir has inherited under the law. As with other probate proceedings, Heirship Proceedings require specific formalities, with which the probate attorneys of Smith & Garg would be pleased to assist you.

• Affidavit of Heirship. Sometimes an individual will pass away leaving no real need to administer his or her estate. Perhaps all the decedent left was a home, and the heirs are only interested in clearing title to that real estate in the name of those who are legally entitled to it under Texas’ intestacy laws. In this case, a procedure called an Affidavit of Heirship is often used. The primary purpose of the Affidavit is to allow the heirs of the decedent to quickly transfer an insured title from a deceased person’s estate consisting primarily of a homestead without resorting to further judicial proceedings. The probate attorneys at Smith & Garg are available to assist you in the preparation of an Affidavit of Heirship if such a procedure would be appropriate in your case.