What Steps Are Involved in Executing a Will After Death?
When someone passes away in Texas, their will is a legal document that outlines how they want their property and belongings distributed. “Executing a will” is the process of carrying out these wishes according to Texas law. Legally, the process is known as “probate,” and it involves several important steps. A Houston will attorney can help you make sure your estate is protected as it goes through this process.
From a Houston Will Attorney: The Steps in Executing a Will
Step 1: Locating and Filing the Will
Unfortunately, not everyone tells their family members where their will is or works out with a lawyer to keep the will once it’s made. If you’re looking for a will, or if you are in the process of preparing your own estate, know that wills are best kept either with an attorney or in a safe deposit box. Texas law requires the person who is named in the will as the executor to be responsible for finding it. The executor is the person chosen by the deceased to manage the estate after their death.
Once the will is found, it has to be filed with the probate court in the county where the deceased lived. This must happen within 30 days unless there is a good reason for the delay (which the executor will have to prove when they do file). To file, you need the original will and a death certificate. This filing officially begins the probate process, and the court will oversee the execution of the will.
Step 2: Validating the Will
The next step in executing the will is validating it. It must be checked to be sure it meets all the legal requirements of the state. It must be in writing, it must be signed by the deceased, and it must be witnessed by two people who are not beneficiaries and who meet all other legal requirements for a witness. In some cases, the court will hold a hearing in order to confirm the authenticity of a will.
If the will is considered valid, the court will then issue an order and admit it to probate. If there is no will, or if the will is found to be invalid, then the estate will go through probate according to Texas intestacy laws. In most cases, it is in everyone’s best interest to avoid intestacy. The rules are clear, but they may not match the wishes of the deceased or end up being fair to the beneficiaries.
If any family members bring a contest to the will at this point, such as by claiming it was made under undo pressure or the testator was not mentally capable, the court will resolve this dispute before moving forward to the next step. Depending on how many contests are brought and how valid they are, this step can take virtually no time at all or years. One of the benefits of working with a will attorney as you create your estate plan is that your attorney can help you minimize the possibility of disagreements and contests to the will after your death.
Step 3: Appointing the Executor
After validating the will, the court officially appoints the executor named in the will. The executor’s job is to manage the estate and then pass it on. Managing the estate involves paying all debts, dealing with any taxes, handling all other legal issues, and then distributing the assets to the beneficiaries. The executor must take an oath promising that they will fulfill these duties honestly, but if the named executor either cannot serve or refuses to do so, the court will appoint someone else. This may be a family member, but it’s often a professional.
The executor may also be required to post a bond. This bond is a bit like insurance. It protects the estate in case the executor mismanages things, which can happen deliberately or accidentally. Many wills include a clause that waives this requirement, and if you fully trust your executor, this can make the process simpler.
Step 4: Inventorying the Estate
Once the executor is appointed, they must gather and list all the deceased person’s assets. This includes real property, bank accounts, vehicles, investments, and any personal belongings. The executor then files a list of the inventory with the probate court, and this is to be done within 90 days.
It’s common for an executor to have to hire an appraiser to determine the value of certain items. This is most common with real estate and collectibles. Some of the assets of the estate will not go through this process at all, however. For example, if the deceased had a life insurance policy with a named beneficiary, this is not considered part of the larger estate and goes straight to that beneficiaries without passing through probate unless the will directs otherwise.
Step 5: Notifying Creditors and Paying Debts
One of the most important jobs of an executor is to inform all creditors that a person has died, they can claim any money that is owed. If there is a known creditor, such as a bank or a credit card company, the executor must send them a direct notice. They must also publish a notice in the local newspaper in case there are other creditors that are unknown. Creditors have about four months to make a claim against the estate, and if they do not within that time, they lose the rights to claim funds unless they can show that they were not notified.
If a creditor does make a claim, the executor must then review it to decide if it is valid. Assuming it is, they will use funds from the estate to pay off all debts, loans, and any taxes that are owed to the federal or state government. If the estate doesn’t have enough to cover all the debts, then the law requires the executor to prioritize certain payments over others. Taxes are a high priority, for example, as are funeral expenses. It’s very important that an executor take care here to avoid any personal liability, and working with an attorney can protect the estate and the executor.
Step 6: Distributing Assets to Beneficiaries
After debts and taxes are paid, the executor distributes the remaining assets to the beneficiaries named in the will. The executor must follow the will’s instructions exactly.
The executor may need to sell assets to divide the proceeds among the beneficiaries, if the will requires it. Before distributing anything, though, the executor will likely need court approval to confirm everything has been done correctly. If the beneficiaries dispute the terms of the will, there can be long delays here. The probate court will need to resolve these conflicts, and the executor is legally bound to defend the will in this process.
Step 9: Filing Final Reports
Before closing the estate, the executor submits a final accounting to the probate court. This report lists all actions taken and shows the court that the executor followed the will and Texas law.
Contact a Houston Probate Attorney for Help Executing a Will
Whether you’re in the process of preparing your estate, already embroiled in probate, or are an executor in need of help, reach out to us at Hensley & Krueger, PLLC in Houston today for experienced estate and probate help.
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