Probate Law includes non-litigation matters such as the preparation of wills,
Preparation of Last Will & Testament & Codicils and review of out-of-state documents
Preparation of Pre-Need Documents (powers of attorney, directives aka living wills, guardian
designations, appointment of agent to control disposition of remains)
Probate of Decedent’s Estates (including heirship determinations for intestate estates)
Estate Administration (independent/dependent)
Guardianship (Application, Defense, Estate Administration)
Probate refers to the process of having a court recognize the death of an individual and, when there is a will, a legal finding that the document presented is the decedent's final will. If a person dies without a will (intestate), probate still occurs, but other processes including the legal determination of the decedent's heirs must be undertaken. If the probated estate requires administration (payment of debts, collection and distribution of assets, etc.), an estate representative is appointed by the Court to begin administration of the estate. In Texas, in most cases, you must probate within 4 years of the date of death.
Administration is the process of paying debts, gathering assets, shutting down business, filing lawsuit or claims and many, many other matters with the ultimate goal of distributing the assets of the decedent to the devisees or heirs of the estate. Not all estates require administration and there are several abbreviated forms of administration designed to minimize cost available in Texas.
A will states exactly how you want your assets distributed upon your death and further, gives you the ability to elect independent administration of your estate, saving your loved ones considerable time and money. If you die without making a will, a court will first have to determine your legal heirs and then probate your estate, appointing an administrator. And if there are unsecured debts of the estate, the court typically will require a dependent administration with bond. The cost of these procedures reduces the assets that ultimately pass to your heirs. Wills also allow you to plan for your minor children or dependents in the case of your death. Finally, by making a will, you can resolve unintended situations which often occur when individuals divorce and remarry, blending families, such as a surviving spouse owning the family home with minor step-children whose estate is managed by their other parent.
When an individual is incapacitated (unable to provide for his or herself or manage his or her estate), whether the cause is an injury, physical or mental illness, or something else, the court can limit or remove the rights of the incapacitated person and appoint a legal guardian of the person and/or estate to assume those rights and duties. Guardianships should and can often be avoided with the use of pre-need documents such as a health care power of attorney. However, in some situations, guardianships are necessary, such as when disabled children reach the age of majority (18), or the proposed ward is being abuse or exploited.