Transitioning Assets to Beneficiaries

Texas Probate Attorney

Probate Law

Understanding The

Purpose of Probate

Emily Bohls Law recognizes that navigating probate can be complex and emotionally challenging for families. Our firm is dedicated to guiding clients through every step of the probate process with compassion and expertise. We work diligently to ensure that all necessary legal requirements are met, assets are properly transferred, and any disputes are resolved efficiently. By focusing on the ultimate goal of probate—transferring assets from the decedent’s name to their beneficiaries or heirs—Emily strives to provide peace of mind and support during what can be a difficult time.

Understanding Probate

Comprehensive Probate Services in Texas

At Emily A. Bohls PLLC, we recognize that navigating the probate process can be both complex and emotionally challenging for families. Our firm is dedicated to guiding clients through every step of this process with compassion and expertise. Probate serves the ultimate goal of transferring assets from a decedent’s name to their beneficiaries or heirs, ensuring legal requirements are met, assets are appropriately transferred, and any disputes are resolved efficiently.

Transitioning Assets to Beneficiaries

The ultimate goal of probate is to facilitate the transfer of the deceased person’s assets. This process ensures property titles are appropriately updated, confirming ownership by those entitled to inherit under applicable laws.

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Did your loved one pass away?

The ultimate goal of probate is to facilitate the transfer of the deceased person’s assets from their name to the rightful beneficiaries or heirs designated by law or the deceased’s will. This legal process ensures that property titles are appropriately updated, confirming ownership by those entitled to inherit under applicable laws or testamentary provisions.

Without a Will

When someone dies WITHOUT a Will (intestate) options:

What is it?

  • Affidavit filed in probate court, approved/signed by judge, then recorded in the real property records (as well as the county probate records).
  • For use when a Decedent’s estate is small (less than $75,000, exclusive of homestead and exempt property).
  • Only passes homestead real property
    If more real estate, then must file affidavit of heirship for each additional property.
  • Perfect method for obtaining financial account funds or other assets as long as the total assets do not exceed $75,000.

Requirements

  1. No Will
  2. Assets, not including homestead and exempt property, do not exceed $75,000
  3. No administration created or pending
  4. Liabilities do not exceed assets
  5. Must list bank accounts, retirement accounts, etc. (if applicable), vehicles, etc.
  6. ALL heirs/distributees must sign + 2 disinterested witnesses

Bottom Line

Can be useful for surviving spouse situations; only useful for homestead property and if decedent had other assets heirs needed to access. All heirs must sign at closing.

What is it?

An affidavit that outlines the family and marital history of a deceased owners of real property that is filed in the real property records of the county where the property is located.

Need 3 affiants:usually 1 heir and 2 disinterested witnesses that know and can establish their knowledge of decedent’s family and marital history.

It is merely evidence of ownership until on record for 5 years (although not that way in practice).

Can be used even if there is a Will or no Will.

Requirements: Affiant signs in front of a notary + 2 witnesses.

Bottom Line

Only good for real property (can’t use this to access bank account, for example)

What is it?

Judicial determination of who Decedent’s heirs are.

Filed in a Court with probate jurisdiction, Judge appoints an attorney to represent missing/unknown heirs (applicant pays for this attorney), all heirs are served (formally given notice), and hearing is held.

Why not just do Affidavit of Heirship or Small Estate Affidavit?

  • ​Have an asset that is not covered by Affidavit of Heirship.
  • Distributee/heir will not sign Affidavit of Heirship or Small Estate Affidavit.
  • Assets exceed $75,000.
  • Missing heir or unknown heir.
  • Costly (applicant pays the attorney appointed to represent missing/unknown heirs + other costs).
  • May also need to be done in conjunction with Independent or Dependent Administration.

Bottom Line

The declared heirs will be the owners of all estate property.

What is it?

An affidavit that outlines the family and marital history of a deceased owners of real property that is filed in the real property records of the county where the property is located

Need 3 affiants:usually 1 heir and 2 disinterested witnesses that know and can establish their knowledge of decedent’s family and marital history.

It is merely evidence of ownership until on record for 5 years (although not that way in practice)

Can be used even if there is a Will that has not been probated.

Bottom Line

Only good for real property (can’t use this to access bank account, for example)

What is it?

Same process as dependent administration above, but happens when all heirs cannot agree (or all heirs are not accounted for or there is a minor heir) on an independent administrator.

Administrator still has to be bonded, seek permission from court to conduct business, file accountings, and formally close the estate upon completion.

WitH a Will

When someone dies WITH a Will (testate) options:

What is it?

Muniment of Title is a legal term for a document, title, deed, or other evidence that indicates ownership of an asset.

In Texas, a court may admit a Will to probate as a muniment of title if the court is satisfied that the Will should be admitted to probate and the court: (1) is satisfied that the testator’s estate does not owe an unpaid debt, other than any debt secured by a lien on real estate; or (2) finds for another reason that there is no necessity for administration of the estate.

Benefits

Faster and cheaper: Avoid the formal process of an administration (no executor or administrator necessary)

Perfect for when you only need to change title of property over to the beneficiaries named in the Will

How does an Estate qualify?

The estate must have NO debts (including no Medicaid claim) other than those secured by real property (mortgages, property taxes, etc.)

How does it work/process?

Application is filed by interested person (usually the named executor/alternate executor or beneficiary)​

Simple hearing to admit Will (no executor is appointed…the Will is evidence of ownership and can be presented by any beneficiary as proof of ownership)

Order certified copy of Will and order admitting Will

Bottom Line

File certified copies of above in real property records where property located AND/OR present certified copies of above to people/institutions in custody of estate money or assets.

What is it?

Contrast from Muniment of Title: Here, there is a reason a representative (executor) needs to be appointed in order to identify, collect, administer and distribute (including to creditors) the estate.

The executor (or alternate executor) is appointed in the Will and nominated to serve independent of court supervision and without the necessity of a bond (the default in Texas is a dependent administration, as discussed below).

Process

  1. Application filed by Executor
  2. Executor in Will gets appointed at simple hearing and Will gets admitted
  3. Executor takes/signs oath
  4. “Letters Testamentary” are issued, giving the Executor the documentation needed to show authority
  5. Creditors get notified
  6. Beneficiaries get notified
  7. Inventory gets filed
  8. Executor’s role is to collect assets, pay debts, manage affairs, then ultimately distribute assets

Bottom Line

The executor will have the authority to pay debts, gather, sell, distribute estate property after the oath is administered and the executor receives Letters Testamentary.

What is it?

Default in Texas is dependent. ​ “Letters of Administration” instead of “Letters Testamentary”

Why?

Will made the administrator dependent (keep things in check) ​ Will failed to properly make the executor independent and all beneficiaries couldn’t agree.

Process

Same as above, but in order to manage affairs, the dependent administrator must file an application with the court before doing anything…like selling personal property or real estate and approving/paying claims. ​ Administrator must be bonded to cover all liquid assets of the estate Administrator must make and file annual accountings ​ Also, must file a final accounting and formally close the estate once completed

Bottom Line

The administrator will have authority to do same as independent administrator after the oath is administered and the administrator receives Letters of Administration; however, this is just the first step…the administrator must get court to authorize and confirm all acts of the administrator.

What is it?

An affidavit that outlines the family and marital history of a deceased owners of real property that is filed in the real property records of the county where the property is located

Need 3 affiants:usually 1 heir and 2 disinterested witnesses that know and can establish their knowledge of decedent’s family and marital history.

It is merely evidence of ownership until on record for 5 years (although not that way in practice)

Can be used even if there is a Will that has not been probated.

Bottom Line

Only good for real property (can’t use this to access bank account, for example)

What are considered

Non-Probate Assets?

Non-probate assets encompass a variety of holdings that bypass the probate process upon the owner’s death. These include:

  • Trust Property
  • Joint Held Accounts
  • Real Property Deed Upon Death
  • Accounts with Beneficiaries (P.O.D) Accounts
  • Life Insurance with a Beneficiary Named
  • Texas Real Estate is not generally a right of survivorship 

Real estate typically does not automatically transfer through right of survivorship unless specifically stated in the deed or ownership structure, underscoring the importance of clear estate planning to ensure seamless asset distribution according to your wishes.

What are considered

Probate Assets?

At the Law Office of Emily A. Bohls, we assist clients in navigating the complexities of probate law, including the identification of probate assets essential for estate administration. Probate assets typically include:

  • Real Property
  • Jewelry
  • Cars
  • Art, Antiques, and Collectibles
  • Stocks & Bonds
  • Life Insurance if no beneficiary is listed or the beneficiary is deceased
  • Bank and retirement accounts with no or estate beneficiaries.
  • Clothing & Personal Items

Additionally, bank and retirement accounts lacking specified beneficiaries or designated as part of the estate fall under probate jurisdiction. Our firm ensures thorough understanding and meticulous management of these assets to facilitate a smooth probate process, safeguarding our clients’ interests and ensuring compliance with legal requirements.

What does a typical Probate Case Look Like?

I always have a new probate client complete a questionnaire that accomplishes a few things: (1) provides me with the information I need to complete the application I file with the court and (2) helps the client think of assets and other things that they may have forgotten or not considered.

The last page of the questionnaire lists some common documents, including a copy and/or the original of the will, that I need during my representation.

Once I receive the completed questionnaire and supporting documentation, including a copy and/or the original will, I complete the application and email to the client for review.

After client approval, I e-file the application and a copy of the will with the clerk. The clerk will assign the case to the particular court.

The original will must be filed at the courthouse within 3 business days of the filing of the application.

After filing, the application to probate the will gets “posted” at the courthouse for a period of approximately 10 days.  After that posting period passes, we may approach the court to set the hearing.

In some counties, the hearing will be held via zoom and other counties have their hearings in person. The hearing is a simple hearing that goes rather quickly.  Below are the usual questions I will ask the client:

  1. Please state your name.
  2. What is your relationship to the Decedent?
  3. What was the date of the Decedent’s death?
  4. What county did the Decedent die in?
  5. What age was the Decedent at the time of death?
  6. Was the Decedent a resident of _____ county at the time of death?
  7. To the best of your knowledge, did the Decedent leave a valid will? [you will be shown the Will on the screen or at the bench and you verify that is indeed the Will.
  8. To the best of your knowledge, the Will filed for probate was never revoked?
  9. Does a necessity exist for the administration of the Decedent’s estate?
  10. Does the Will name the state, governmental agency of the state, or charitable organization as a devisee?
  11. After the date of the Will, was a child born to or adopted by the Decedent?
  12. Was a marriage dissolved after the date the Will was signed?
  13. Does the Will named you to serve as Independent Executor, without bond?
  14. Are you qualified and not disqualified by law from accepting Letters Testamentary or from serving as Executor?
  15.  

Once the hearing is over, the client will sign their testimony in a document titled “Proof of Death and Other Facts”.  After the judge signs the Order Admitting the Will to Probate, the client will then sign the “Oath of Executor”. 

Letters Testamentary will be ordered after the Oath is filed.  Depending on the county, the letters can be given to us the day of the hearing or mailed to the client within 2 weeks after the hearing.

“Letters Testamentary” is the term for the legal document that gives the executor the authority to manage the affairs of the Decedent. 

Within 30 days of qualifying as executor (the date of qualification is the date the Oath is administered and filed), the executor must cause to be published a “Notice to Creditors” in a newspaper of general circulation in the county where probate was filed. It is customary for the attorney to handle this step.

Within 60 days of qualifying as executor, the executor must provide notice to all the beneficiaries named in the Will that the Will was admitted to probate.  A beneficiary may also sign a waiver that states they received a copy of the Will and know it was admitted to probate.  If a beneficiary is unable or unwilling to sign a waiver, the executor must send this particular notice by a trackable method.

Within 90 days of qualifying as executor, the executor must file an inventory, appraisement and list of claims (the “Inventory”) pertaining to the estate.  The Inventory is a written instrument that contains a verified, full, and detailed inventory of all estate property that has come into the representative’s possession or of which the representative has knowledge.  The Inventory must include all real property located in this state and all personal property regardless of where the property is located.  The Inventory must specify whether the property is separate or community property.  The Inventory must list the fair market value of all assets.

In Texas, an independent executor may elect to file an “Affidavit in Lieu of Inventory” with the Court, as opposed to a public Inventory, which states that all of the known debts of the Estate have been paid and all beneficiaries have received a verified, full, and detailed inventory of the estate.

Learn About the Probate Process

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Probate

Probate

At The Law Office Of Emily A. Bohls in Texas, we assist clients through every step of the probate process, which includes validating the deceased's will, cataloging assets, appraising property, settling debts and taxes, and distributing remaining assets according to the will or state law, ensuring thorough compliance and efficiency throughout.
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Guardianship

Guardianship

At The Law Office of Emily A. Bohls in Texas, our firm offers comprehensive assistance in uncontested guardianship cases, including establishing guardianships for both personal and estate matters, and managing ongoing responsibilities such as filing annual accountings, applications for property sales, and annual reports.
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Estate Planning

Estate Planning

Estate planning is pivotal at The Law Office of Emily A. Bohls in Texas, ensuring your family's future security regardless of your age, health, or financial standing, with personalized legal guidance and comprehensive strategies meticulously crafted to meet your specific needs.
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"I was at a total loss of who to go to for probating my dad’s will, so I feel very fortunate to have found Emily, an outstanding probate attorney in my area."
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Caldwell County
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"So happy to have found Emily after searching for a probate attorney! I was very worried and intimidated by the costs and amount of work involved after calling other attorneys, but Emily made it all so simple and her fees were always clear and I found to be reasonable"
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Harris County
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Welcome to The Law Office of Emily Bohls, where we specialize in providing expert legal services in Wills, Estates, Probate, and Guardianship matters. With years of dedicated practice and a passion for helping families in Texas, Emily ensures that every client receives knowledgeable, compassionate, efficient, and cost-effective representation.