» Probate

If you’re reading this because a family or loved one has died, many condolences. Jana McCreary has been through the process and understands many of the challenges you might be facing.

If you are the person closest to the decedent, you will want to secure the person’s property and look for important documents such as a will, life insurance policies, and burial contracts. You’ll order death certificates from the funeral home or crematorium that handles burial or cremation.

Jana can meet with clients early in the process, but not much in the legal process can be done without a death certificate. In the meantime, tend to your family as you honor your loved one’s memory.

The estate is responsible for paying for funeral costs, but not always are estate funds immediately available. And it is possible the estate will not have enough money to cover the cost. Planning in advance — by prepaying for your services or by making sure funds are available to your agent — can help your family through this process. It is possible that a contract you sign could make you personally liable for the payment, so proceed carefully.

Probate is, at the basic level, the process of the court overseeing what happens after a person dies. Officially, someone gathers the person’s assets and distributes them to the beneficiaries. That person is responsible also for handling any debts the decedent owed by paying those out of the estate.

A will does not always have to go through probate. However, in Texas, if a will does need to be probated, that must happen within four years. Please consult with an attorney to find out if probate is needed in your situation.

In Texas, probate typically happens in the county where the person lived. If the person owned property in multiple counties, some things are filed in the other counties too.

Yes. However, Texas allows you to include a “no contest” clause. This kind of clause basically says that if someone tries to contest your will after you die, that person forfeits his inheritance if he loses. Texas supports this unless the person contesting the will does that in good faith and had just cause – a solid reason – for contesting the will.

When someone has a will, we call that dying “testate.” If the person dies and does not have a will, that is called “intestate.”

Texas law outlines where your assets go when this happens — such as to your spouse or your children if you are married or have kids or to your parents or siblings if you are not married and have no children. This becomes a bit complicated, though, if you are married when dealing with community property and separate property and particularly if your spouse is not a parent of your children.

Even if you are happy with how the state says your property should be distributed, when you don’t have a will, the process for handling your estate is often more complicated and more expensive. Your estate is more likely to need a determination of heirship or a dependent administration, both of which can be costly.

Not always. Because of the community and separate property rules in Texas, this can become complicated for someone who was married and does not have a will, especially regarding any separate property. Your spouse has a right to his share of the community property. Everything else will pass either as you state in your will or as Texas law states happens if you die without a will.

Typically, yes. If any of your children have died before you, then that person’s share will go to that person’s children. Even if you want everything to go to your children, having a will prevents the likely necessity of a determination of heirship proceeding.

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Attorney Jana McCreary

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Houston Estate Planning and Elder Law Attorney Jana R. McCreary has been an attorney for over seventeen years, a career move she made after working for over a decade with adults and children with intellectual disabilities and mental illness. Graduati… Read More

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