An Experienced Probate Attorney Explains the Role of Executor

Your brother has asked you to be the executor of his estate, and you have no idea how to respond to that question. It’s an important decision to make, and before you do so, you should have a good understanding of the duties involved. Keep in mind that no two estates are alike, so your role may be more involved than the general duties listed here.

Executor Duties

Generally, the basic duties you’ll be asked to do are:

  • Make a list of the beneficiaries.
  • Manage the finances of the estate, including paying all debts of the descendant.
  • File tax returns, if applicable.
  • Keep records and provide the court an accounting at the end of the estate liquidation.
  • Distribute the assets to the estate beneficiaries.

Fiduciary Relationship

Because you have a fiduciary relationship with the estate, you must act with reasonable care, make good faith decisions and maintain confidentiality. You must pay all outstanding bills and collect all assets that are to be probated. At all times, you should follow the instructions indicated in the last will and testament.

If you fail to perform these duties you can face causation and punitive damages. It is important to note that even though you accept the role now, you can always ask the probate court to relieve you of your duties if you find the job too overwhelming, or you otherwise cannot serve as executor.

For more questions on the executor role, drafting a will or other estate matters, contact us for a consultation.

Retain an Estate Litigation Attorney When Seeking to Remove an Executor

If you have an interest in a deceased family member’s estate and you are finding issues with the executor of the estate, you have the right to challenge the executor of the will. This must be done by initiating a court proceeding. Here, our attorneys experienced in estate litigation explain some of the circumstances to warrant such a challenge.

Proving Unsuitability

In order to be successful in removing the executor from the estate, you must prove unsuitability. You need to prove that a conflict of interest exists, or that the named executor is somehow legally ineligible to serve as the executor of the estate.

In order to be legally ineligible, the executor must be involved in another complex litigation or be mentally incompetent for the role of executor. Other reasons for removal include the executor stealing from the estate, wasting way the assets or refusing to follow the estate accounting rules.

The Court Proceeding

During the court hearing that will determine if the removal is warranted, your attorney and the executor’s attorney present their case as to why the removal should or should not happen. An estate audit may be necessary to help establish the executor’s legal ineligibility.

The court won’t remove an executor for frivolous reasons. Even if the executor and the interested party don’t get along, if the executor is argumentative and rude, if he withholds certain information or takes a long time to settle the estate, those actions allow are not enough to warrant the executor’s removal.

If you’re looking to initiate an executor’s removal or have other estate litigation issues, contact us for a consultation.

Estate Planning: Have You Been Overlooking Anything?

As you are planning your estate, you have probably come across various challenges and frustrations. You are constantly asking yourself the same questions over and over. Which loved one gets what? Should I establish a living trust? These are certainly good questions to ask, but sometimes other things are not thought about. It is important to avoid overlooking certain aspects of estate planning.

 Your Beneficiaries

Do you know you can transfer some of your assets, regardless of the will? You can do this by making sure you have named your beneficiaries. What kind of assets can you transfer to the beneficiary in a direct manner?

  • a life insurance policy
  • a retirement fund/account
  • a car, truck, etc.

In order to make this happen, you will need to submit a form to the appropriate business. If you are designating financial benefits, you should submit a form to the appropriate financial institution. Sometimes your situation changes and you need to make adjustments to your documents. This is why it is important to make sure all of your information is current, especially concerning your beneficiaries.

Your Documents/Files

The person who has been left in charge of your estate should be able to easily access any necessary information. You will need to leave clear instruction on where to find all of your documents, your account numbers, etc. If you do not leave instructions, the executor of your estate may have a difficult time finding all the information that is necessary to execute your estate plan.

Will You Have Cash Available?

You will need to have some cash available because there will be certain expenses that will need to be paid for. What kind of expenses?

  • lawyer fees
  • court fees
  • any debts that you have left behind

When you are planning your estate, you should make the right calculations to ensure you will have enough cash so all expenses can be covered until your estate has been settled.

If you are planning your estate and believe you are overlooking some important aspects, you should reach out to a lawyer for a consultation. Contact us today.

Basics of Probate, Part III

Persons ask the Question of Why a Last Will and Testament is Necessary:  The best answer is that a Last Will and Testament is quite simply an official way for the individual to set forth his or her wishes regarding distribution of property upon his or her passing away.

An individual is wise to consider a Last Will and Testament whether he is married or single; and/or if he or she has minor children; and even when he or she owns a limited amount of personal and real assets.  In other words, it is best that every person have a Last Will and Testament or similar means as to the disposition of their respective property.

The best reason for an individual to put his or her intentions down on paper, in a fashion that is formalized is because, otherwise, the litigation that follows his or her passing may end up being quite costly as well as unnecessary.  Such a prospect will not be welcome to the individuals that survive; and may impact their grief.

The reader is encouraged to find out more about Probate and determine how estate planning can provide reassurance for him or her.  In order to get the ball rolling, the individual interested in finding out more about estate planning and the Process of Probate is additionally encouraged to contact us.  Our team of legal advisors are ready to assist the interested individual in finding the best solution in the official disposition of his or her assets.  Why not contact us today?

The Basics of Probate, Part II

The content which follows is about what happens during the process of probate:

What Occurs During Probate?

The process of probate can be either uncontested or contested.  The majority of contested issues generally come about during the process of probate.  The preceding occurs, generally, because an unhappy heir was anticipating that a greater portion of the decedent’s property was going to be allocated to him or her.

The arguments that are generally brought to the forefront, when the heir is unhappy with the allocation include the following:

  • The decedent may have been ill-advised or was the victim of unfavorable influence when provisioning certain gifts to particular parties;
  • The decedent lacked sufficient mental capacity in the allocation of his or her property to certain individuals; at the time his or her Last Will and Testament was drawn up; and,
  • The decedent did not properly follow certain formal legal guidelines in the drafting of her or his Last Will and Testament.

The arguments aside, the basic probate process is provided below:

  1. All of the decedent’s probate property is collected;
  2. The claims, debts and tax revenue owed is paid by the estate of the decedent;
  3. There is a settlement as to any dispute; and
  4. Distribution of the property that remains within the estate is allocated to the heirs.

The decedent, generally, will name an individual as executor of his or her estate.  The preceding person is responsible for taking over the administration or management of the estate upon the passing away of the decedent. In the case, where the decedent did not name an administrator then the probate court will appoint a personal representative.

Once again, it is the responsibility of the personal representative to settle the estate. The administrator, then, is responsible for many of the duties listed within the preceding content.

It is typical for persons to leave their property to any individual they wish.  The individual drawing up his Last Will and Testament will make designations as to whom he or she wishes to leave his or her personal property and/or real property within the Last Will and Testament.  However, dependent on the relationship to the decedent and the laws of the decedent’s state of residence, his or her personal wishes may be “trumped” by the court.  In example, in the majority of states, a spouse is entitled to a certain portion of the marital property of the estate.  Further, certain individuals or companies may have a respective claim on the estate.

Each venue, generally, prescribes the length of time an estate is opened in order to provide creditors a fair span of time which to present their respective claims.  The more sizable or complicated the estate, the longer is the period of time which the process of probate occurs.  The preceding is true since the entire process, as it pertains to persons with a claim is very time consumptive in nature.

The process of probate, in and of itself, additionally, carries a number of expenses.  The costs are generally paid out of the assets of the estate.  The costs associated with the process of probate follow:

  • The fee of the estate’s personal representative;
  • The Attorneys’ fees associated with the estate,
  • The Court costs associated with the estate.

Check back tomorrow for the final post on the topic, Why a Last Will and Testament is Necessary…

Basics of Probate, Part I

Houston Attorneys Explain the Basics of Probate

 Introduction to Probate Basics:

Probate is known as the process of transference of property when an individual passes away.  It is interesting to note:  even though the laws of probate have changed, over the decades, the original intent of it is the same.  The concept is:  persons officially provide their wishes as to the transference of their personal property and real property at the time of their respective passing.  The preceding action is generally handled by way of a Last Will and Testament.  Additionally, the individual provides information within the preceding legal document how debts are to be paid out of the estate as well as how his or her property is to be formally distributed.

The Administration of Probate:

The process of probate is one that is supervised by the court.  It is set up to properly allocate the transfer of the individual’s property, again, upon his or her passing.  The property which is subjected to the process of probate is what is owned by the person upon his or her passing away; and which does not pass to other individuals by ownership or by way of official designation.  Examples of the preceding include bank accounts and life insurance contracts.

Some persons are familiar with the typical expression of probating a will.  The expression is a term applied to the process by which an individual demonstrates to the court that the decedent followed all legal protocol in the drafting of his Last Will and Testament.  Persons hear time and time again how to avoid the process of probate.  The idea behind avoiding probate is mainly the conceptualization of avoiding the fees associated with the process.

There are some individuals that are actually successful in avoiding the probate process.  Three ways an individual avoids probate  is by way of:

  • Joint ownership with the right of survivorship;
  • By way of gifts, and
  • Lastly, by means of revocable trusts.

Parts II and III will continue this week!

Estate Litigation: Yet Another Reason You Need a Will

At Ford + Bergner LLP, we stand ready to help you through the most difficult contested probate matters, but we sometimes like to step back and remind you some controversies can be avoided through simple planning.

A decision last month from the 5th District appeals court illustrates the point.

Melvin Don Jones died in 2013 at the age of 66, a resident of Dallas County. He had never married and he had no children. His parents were dead. He had no will.

Two of the decedent’s siblings petitioned the court to determine that they and a third, half-sibling were his only heirs. The court appointed an attorney ad litem to represent possible unknown heirs. She reported that the decedent also had two more sisters, another brother, and a half-sister. All of these had died, but three of them had children who were still living.

The court heard testimony from one of the petitioners, the widower of one of the deceased sisters, and a longtime neighbor of the decedent, and entered judgment determining the heirs who should inherit the decedent’s estate.

It was only at this point that the widower of yet another individual said to be related in some way to the decedent stepped forward. He did not ask the trial court to reopen the case, but instead filed an appeal to the 5th District appeals court.

The appeals court determined the appellant had no standing to appeal the trial court’s judgment, as he had offered no evidence to indicate his deceased wife was related to the decedent.

The case is In the Matter of the Estate of Melvin Don Jones, decided March 18, 2016.

The point we want to make here is that this entire situation could have been avoided had the decedent left a will indicating who should receive his property after his death.

If you find yourself in a dispute concerning a decedent’s estate, or if you would like to talk about proper planning to prevent disputes from arising, please contact us.