Inheritance

Estate planning and probate are two terms that often come up when discussing the transfer of assets after someone's death. While both are essential aspects of managing an estate, they are not the same. In fact, the choices you make in estate planning can significantly impact the time and money spent during the probate process. This article aims to shed light on why investing in proper estate planning now can save your heirs both time and money later.

The Cost of Dying Intestate in Texas

Dying intestate, or without a will, can be a costly affair. In Texas, intestate probate involves additional steps such as heirship determination, attorneys ad litem, and numerous probate court proceedings. These steps not only prolong the process but also add to the expenses.

The Will: A Step in the Right Direction

Having a well-written Last Will and Testament can reduce the time and expense involved in probate court. However, it's essential to note that in Texas, a will has no legal effect until it is probated, as per Texas Estates Code § 256.001. Therefore, while a will can streamline the probate process, it doesn't eliminate the need for it.

Trust Planning: A Tool for Avoiding Probate

For those looking to avoid the probate process entirely, trust planning is an excellent option. Assets placed in a trust are not subject to probate, providing a smooth transition of assets to the beneficiaries.

Pay Now or Pay Later: The Choice is Yours

The essence of estate planning is that you pay upfront—both in time and money—so that your heirs don't have to pay later. Whether it's the cost of drafting a will or setting up a trust, these are investments that can save your family from the financial and emotional toll of a lengthy probate process, disagreements, taxes and other expenses, and more.

Legal Requirements in Texas

In Texas, courts require an attorney for probate because an executor is not representing themselves. This means you can't represent yourself pro se, as you're not truly representing yourself. For example, Dallas County's probate pro se policy states that only a licensed attorney may represent anyone other than themselves in a judicial proceeding. Similarly, Denton County's policy also mandates that individuals must act through legal counsel in probate and guardianship cases.

By taking the right steps now, you can save your family time and money in the future. Whether it's drafting a will, setting up a trust, or understanding the legal requirements, each step you take today can reduce the cost (in terms of time and money) for your heirs in the future.

For more information on how to navigate the complexities of estate planning and probate in Texas, contact a qualified attorney at Crain & Wooley.

It’s common for people to disinherit family members for various reasons. When consulting with clients who want to specifically exclude someone from their estate plan, they ask, “should I give them $1?”

My answer is always an emphatic, “absolutely not.”

I’m not 100% sure when or how this $1 trend started, but I’ve encountered it often. I assume the theory behind it is “if I specifically name them and give them $1, they’ll know that I didn’t forget about them, and I want them to know that I don’t want them to have more than $1.” While I understand the strong psychological need to express these sentiments, the legal aspects of leaving a $1 gift have the potential to negatively impact everyone involved with the estate.

If you give someone $1 in a will, they are required to be a part of the probate process.

Remember, a will must complete the probate process before an inheritance, of any size, is given to beneficiaries. Everyone who is given a bequest in a will must be notified about the probate process. 

• Best case scenario: all beneficiaries receive notice of application for probate and a copy of the will, but sign waivers that basically say, “I don’t need to get official notices via certified mail regarding the probate process. It’s fine if the executor just emails or calls me to let me know what’s going on, and I have no disagreements with the contents of the will.” 

• Worst case scenario: all beneficiaries receive notice of application for probate and a copy of the will, but one or all fail to sign a waiver of agreement and choose to get actively involved and contest any or all parts of the probate process. In short, a $1 gift in a will is a written invitation (via certified mail) to cause problems.

Additionally, in some cases, specifically giving someone a $1 gift could add fuel to the fire if mental capacity, validity, or undue influence are factors in the probate. A $1 gift provision could be seen as being out of character for the person who wrote the will, and therefore presented as evidence that could invalidate the will. Even if the contest isn’t successful, the extra time and expense could be incredibly detrimental to everyone involved. If an extra $50,000 (or worse) in attorney and court fees are spent because the $1 gift causes a contest, those fees come out of the estate first and the other beneficiaries get less.

“So what’s the solution?” It’s actually very simple: In the introduction of your will, we can simply add a statement that says, “It is my intention to make no provisions in this will for my son, John Doe, Jr. or his descendants.” That’s it. 

Then the rest of the will can state provisions for how the other people will inherit their gifts. (Sometimes, like in the movie Knives Out which I wrote about previously, the person writing the will can choose to write a separate letter explaining why someone was disinherited.)

Where there is family – there is drama. Carin & Wooley has seen and heard just about every family situation you can imagine. We specialize in limiting family drama and helping you craft an intentional legacy. Have a question about a family situation? Contact us today.