Wills and Probate
This area can be complex due to family relations that do not get easier over time. Use of Wills and Trusts afford the opportunity to place into operation a plan for avoiding potential financial disputes.
The following is a general overview (specific situations might require adjustments) of actions to be taken in order to properly manage and administer a probate Estate where the Will is not “self-proved” (not all estates and not all estate assets are subject to probate). The Executor/Administrator has duties to estate creditors, to the U. S. Treasury and to the state where property is located, as well as to the beneficiaries.
- The Application for Probate is drafted and presented to Applicant for a verified signature (Notarization). If the Applicant is also the Executor/Administrator and resides out of the state where the Will is probated, a resident agent must be designated. Generally, the original Will is filed with the Court along with the Application. Application is filed in County where the deceased resided.
- Statutory Wait (in Texas the hearing to probate the Last Will can be scheduled the Monday following the Application being on file for 10 days.)
- At the Probate Hearing. If the attesting Witnesses to the Will are available, they are the “preferred” Witnesses. If the attesting Witnesses are unavailable, then two other Witnesses will verify the signature and competency of the deceased. The Applicant generally requests appointment as Independent Executor/Administrator. The Executor/Administrator signs an Oath before the Clerk (and remits Bond if so Ordered by the Court).
- After the Executor/Administrator signs the Oath, (s)he orders the Letters Testamentary/Letters of Administration, which provide evidence of the power to act for the estate (about $2 charge per copy).
- Within 30 days after qualification as Administrator/Executor, a Notice to Creditors is published in an appropriate newspaper in the County where the deceased resided. This notice is later filed with the Court together with the Inventory.
- All BENEFICIARIES MUST RECEIVE A COPY of the Will and Order admitting to probate within 60 days after Order is signed, by certified mail (attorney must file affidavit of transmission). To reduce costs, a waiver can be signed and notarized. The waiver(s) will later be filed with the court (with Inventory).
- Within 90 days after the application to probate is submitted, Inventory is filed. (Most contract proceeds, i.e., life insurance, IRAs, Qualified plans, and Bank accounts with right of survivorship, are not included in Inventory except if payable to the estate.) If there are no unsecured debts against the estate, an Independent Administrator/Executor may file an affidavit in lieu of Inventory (with required information provided to devisees).
- Within 2 months of qualification as Administrator/Executor, actual written notice should be sent by certified mail to all secured creditors and all unsecured creditors who have not been paid.
- Within 9 months after the deceased’s death, any elective Disclaimers (of beneficiaries) must be filed with the Probate Court (must complete state law requirements for federal “qualified disclaimer”).
- CPA consultation (If the estate is subject to Federal Estate Tax or State Inheritance Tax)
- If Federal Estate tax /State Inheritance tax is due, the Executor can consider making a full distribution, only after the CLOSING LETTER is received by the U. S. Treasury.