Wills and Probate Plan
Who do you love? Who do you trust? What do you have? If you can provide the answers to these three questions, we can write a plan to give you peace of mind about what happens when you are gone.
Harle & Scheff can help you design a plan that meets the special needs of your family and life. Each plan is as unique as each person. We can design wills and trusts that provide for blended and dysfunctional families, loved ones with medical or emotional needs, immature children, or high net worth taxable estates. Since no one plan fits everyone’s needs, we do custom tailoring.
It is easy today to go onto the internet and find a “canned” will. Many people do so in an effort to save money on executing this most important document. However, if the Will is not executed properly, it will not be valid and cannot be admitted to Probate. Your property will not pass as you desire when your life has ended. Texas has a particular set of steps that must be followed when executing a will. More than once we have encountered grieving loved ones who were disinherited from an estate by virtue of the fact that the decedent did not execute his or her “free” will properly.
Harle & Scheff assists in end of life planning to provide the assurance that your Will is drafted and executed correctly and that your wishes for the disposition of your estate are documented.
Probate and Decedent's Estates
The death of a loved one, whether parent, child or spouse is a difficult time. Everyone seems to have an opinion as to what should be done. At Harle & Scheff, we have one word of advice for the grieving survivor. Breathe!
When a person dies, they become known as a “decedent” All his or her possessions are automatically moved into an estate. The probate process determines how that estate is divided and passed along to family members, friends and other loved ones.
Remember that there is usually the opportunity to move slowly and take time to decide the right path. We at Harle & Scheff are committed to helping you determine which path is that right one for you.
Our first advice to potential clients is to get through the funeral and the immediate aftermath. Everything else will happen in its own time. If the Decedent left a will (e.g. died “Testate”) then remember that it is usually not necessary to rush into court to have it probated. The Texas Probate Code provides a waiting time of up to four years from the time of death to probate a will and receive Letters Testamentary. A will may be probated even after four years with so long as good cause exists why it was not presented before that time. However, remember that a will may only be probated as a Muniment of Title after this period.
The two most common forms of probate depend on what needs to be done to distribute the Estate. Asking the Court to probate the will and appoint a personal representative (Executor/Executrix) is appropriate if action by the personal representative is necessary to either pay bills, redeem stock, close bank accounts and distribute funds, sell property and distribute proceeds, or to close or sell or even run a business until a successor is qualified. Most estates close quickly, but it is not unheard of to have an estate remain open for 30 or 40 years.
Probate as a Muniment of Title is appropriate if there is no administration necessary. In this case, all the Decedent’s bills have been paid and there is no debt owing by the estate that is not secured by real property. Oftentimes, surviving spouses or children will take care of these chores and all that remains is to put the decedent’s property in the hands of his or her beneficiaries as specified in the will. In this case, the Muniment of Title process will do just that. The Statute provides that title to property distributed through the will vests in the beneficiary as if they have always owned the property. The chain of title is complete.
If the Decedent died without a will (e.g. died “Intestate”) then there other options available. If the Decedent died without leaving a will, the Probate Code specifies how his or her property will pass. Property passes in different paths depending on whether the Decedent was married or unmarried at the time of death and whether the Decedent left surviving children or grandchildren.
Once the persons who take upon intestacy are determined, the simplest method to pass the property is to file an Affidavit of Heirship with the County clerk. This method is most appropriate when either a spouse or children or both survive the decedent. The affidavit is sworn to by two or more disinterested witnesses who have known the Decedent for a sufficiently long time to know the particulars about the Decedent’s family history. Once the affidavit has been on file for five years, without anyone coming forward to contest it, it becomes prima facie evidence of the decedent’s heirs.
Sometimes, it is not possible to wait 5 years to determine the Decedent’s heirs. In such a case, it may be necessary to apply to the Court for Determination of Heirship. If decedent was never married or was married multiple times, it may be necessary to appoint an ad-litem attorney to determine Decedent’s “unknown” heirs. An affidavit of heirship will still be filed in the context of an Heirship Proceeding, but in this case, the Judge will determine the heirs of the Decedent. The determination will be effective immediately and will be placed in the County records.
Same Sex Couples
On June 26, 2015, the United States Supreme Court issued its landmark decision in Obergefell v. Hodges [576 U.S. _____ (2015)]. This decision legalised gay/lesbian or same-sex marriage in the State of Texas. We are overjoyed that these persons can now celebrate their love and commitment by entering into legally sanctioned relationships (yes, marriage by any other name).
But of course, we cannot get out of life alive. Now that your marriage is legally recognized, you have rights when your loved one passes on. Harle & Scheff can help you in your time of need by shepherding you through the legal system and offering needed advice.
If you are a gay/lesbian in a same-sex marriage, contact Harle & Scheff today to help plan for the inevitable.