What is probate?
Probate is a proceeding usually in County Court where a judge supervises the payment of debts and the distribution of a person’s property after their death. If there is no will, the Judge will appoint an Administrator who will pay debts out of the assets and the remainder, if any will be distributed to the beneficiaries. If there is a will, it will likely name an Executor who will do the same as regards the debts and property. The case is then closed when the Judge is satisfied that the debts have been paid and the property has been distributed properly.
Do I have to hire an attorney?
Yes, in most cases where the amount of the estate is more than $75,000, an attorney is required.
How long do I have to probate a will?
Four (4) years after the person dies.
What if there is no will?
It is more common than not that a person dues intestate, or without a will. Again, if the estate is worth more than $75,000, your attorney will likely need to file an application to determine heirship wherein the judge will determine who the lawful heirs should be and will appoint an Administrator to pay debts and to have the property transferred to the rightful heirs.
What are Letters Testamentary or Letters of Administration?
These are letters signed by the court once the proper paperwork is filed and after a hearing by the judge indication that the person named has the legal authority to deal with the assets of the deceased. Letters Testamentary are used to give the Executor of the will the legal authority and Letters of Administration give the power to deal with the assets of the deceased to the Administrator appointed by the Court where there is no will.
How long are Letters Testamentary or Letters of Administration valid?
How long does it take for probate.?
If the paperwork is filed properly and there are no contests, a properly authenticated will can be probated in approximately 2-3 months, though more often than not it is 3-6 months. An estate proceeding where there is no will may take longer because the Court must appoint an Attorney Ad Litem to represent the unknown interests.
What does probate cost?
A simple probate where the will is properly drawn, and there are no contests by beneficiaries or heirs may cost as low as $2,500-$3500. If the will is not properly drawn, if there are irregularities or contests by potential heirs or beneficiaries, the fees and costs will be substantially more.
What is a Guardianship?
Guardianship is a legal relationship established by a court, between a person who is incapacitated and unable to care for themselves (ward) and a qualified individual or entity named by the judge to help that person (guardian.). An incapacitated person is a minor, or an adult who is substantially unable to provide for themselves, to care for their own physical health or manage their financial affairs, or a person who must have a guardian appointed to receive funds from a governmental source.
Do I Have to File in Court to Obtain a Guardianship?
Yes, a guardianship can only be created by a court.
Do I Need a Lawyer to File the Application for Guardianship?
Yes, you can represent yourself in court but you do not have the right to represent another person.
How Much Does It Cost to Obtain a Guardianship?
The lawyer’s fees and court costs usually run between $2,500-$5000 depending where you are located in Texas and how hard it is to get the guardianship completed. If the court appoints an Attorney ad Litem or a Guardian ad Litem, these fees will be in addition.
What Are the Different Types of Guardianships?
Guardian of the person (basically makes decisions regarding living arrangements, health needs and care of the ward, etc..), Guardian of the estate (basically makes financial and property decisions for the ward), Guardian of the person and estate (all care, living, housing and financial decisions for the ward as specified by the court ) and Temporary/emergency guardianship wherein the court appoints a guardian until the court can hold a hearing in the future to appoint a permanent guardian.
How Do Courts Decide Who Will be Appointed as the Guardian?
For minors, the court first looks to parents, then to the person who the last surviving parent designates for guardian, then to close relatives such as grandparents and uncles or aunts, or a nonfamily member that the court believes will satisfy the requirements.
For adults, the person designated by the ward prior to the incapacity to be guardian, the wards spouse, or a non-relative that the court deems satisfactory to act as guardian.
What is the Difference Between a Power of Attorney and a Guardianship?
There are a number of differences but the most important ones are that a POA allows a person to choose or designate others to act on his or her behalf in the usual tasks of life and sometimes to act on their behalf in certain financial situations. The POA can be revoked at any time by the individual who makes the POA. A Guardianship is created by a court, gives another person the right to decide certain matters such your finances, your living arrangements and your care. Once a guardianship is in place the ward loses the right to make those decisions unless or until a judge decides otherwise.
Can I Use a Power of Attorney to Make My Mother or Father Live Where I Think Is Best for Him or Her?
No, this decision can only be effectively accomplished by a guardianship if your mother or father does not agree with your choice. You will have to present clear and convincing evidence to the court in the guardianship proceeding that your parent is not capable of making such proper decisions on their own.
What Kind of Evidence Must Be Presented to the Court in a Guardianship Proceeding?
The court will require a report by a medical doctor within 120 days of the guardianship hearing detailing the proposed ward’s physical and mental condition. The court will also want to hear evidence from the proposed guardian at the hearing and may wish to hear from the proposed ward also, depending on his or her mental condition. The court may hear testimony from several witness who know the proposed guardian and potential ward. The court may also want to hear from the court investigator and or an Attorney ad Litem if appointed by the court as to what they have found and what they believe to be in the best interest of the ward.
What is a Court Investigator and Why is an Attorney ad Litem Appointed in Some Counties?
A court investigator is a trusted individual trained in family and guardianship situations who looks into whether a guardianship is needed and reports to the court after interviewing medical providers, relatives, friends and the proposed ward. Many of the larger counties employ such investigators to assist judges in obtain facts. An Attorney ad Litem may be appointed by the court. The Attorney ad Litem is a trained lawyer who knows the law and rights of the proposed ward, and represents the ward to make sure a guardianship is in the best interest of the ward. In a nutshell, the Attorney ad Litem is the lawyer for the proposed ward for the purpose investigating the circumstances around the request for a guardianship, to give facts and opinions to the court regarding the proposed ward and whether there may be lesser restrictive alternatives other than a full guardianship which would be suitable in the case. These may include a medical power of attorney, a special needs trust or a management trust, or in some cases even a well drafted special POA.
How Long Does it Take to Obtain a Guardianship?
Depending on your location and complexity of the guardianship needed, a guardianship usually takes between 2-6 months from the filing of the Application to the entry of the order approving guardianship.
What if a Guardianship is Needed Much Sooner?
It is possible to obtain an emergency temporary guardianship withing 10 days of the emergency application being filed. A doctor’s report will need to be filed and an Attorney ad Litem will be appointed. A hearing will then be held within 10 days of the filing of the emergency application and after evidence is presented, the court will decide whether to appoint a temporary guardian or dismiss the case. If a temper guardian is appointed, that person will serve for up to 60 days by which the court will decide if there is a need for a permeant guardianship or not.