How to handle probate following the death of a loved one. 

Woman with flowers at a funeralThe unthinkable has happened: Your mom has died, or your spouse, or your brother. You’re the closest relative. The funeral is over, and now you’re wondering: How do I deal with my loved one’s assets? What about the debts they owed?

The more information you have about those assets and debts, the better. Go through your loved one’s files, email account (if you have their login credentials), and regular postal mail. Make a list of what the deceased person owned and another list what he or she owes to creditors. If you cannot get access to this information, a probate attorney can help you get it.

Sometimes the deceased person will have named payable-on-death or transfer-on death (“POD” or “TOD”) beneficiaries for some of their assets. For example, he or she might have filled out a TOD form with the bank where they kept their checking and savings accounts, naming Person A as their first-choice (“primary”) beneficiary or, in case Person A died first, Person B as their second-choice (“secondary”) beneficiary. If you are named as a POD or TOD beneficiary, all you will need to do is fill out a form and present a death certificate to have the assets transferred to your name.

Usually, though, things are not that simple. For example, your mom may have named you and your sister as equal TOD beneficiaries on her bank accounts — but she also owned a house and a brokerage account with no TOD beneficiary named. How is title to those other assets passed? That process is called probate.

The experienced attorneys at Brousseau Naftis & Massingill, P.C. have represented clients in will, trusts, estates and probate law matters for decades. For more information, contact us today for a no-obligation consultation.

Accessing The Will

Did your loved one have a will? If they did, it must exist somewhere in hard-copy form, because electronic wills are not (yet) legal. Try to locate a will among your loved one’s files. You should take care to find and safeguard the original paper document that the person actually signed. (You can still use a copy, even a .pdf copy, but it is much more difficult and expensive than using the original.) Many attorneys store their clients’ original wills at their offices, so if your loved one had a lawyer, call that lawyer and ask whether they have your loved one’s original will in their possession.

Once you have located a will, ask a probate attorney for help in getting the will admitted to probate. No matter what the will says, it cannot help you in transferring assets to the beneficiaries unless the local probate court reviews it and issues an official order declaring it valid. This process is called “admitting the will to probate” and must be done according to the Texas Estates Code and special procedural rules.

What If There Is No Will?

What if the deceased person had no will, or you cannot find one despite your best efforts? If you were related to the person by blood or marriage, you may still inherit some portion of their assets by the “law of intestate succession.” This term refers to state laws that say who inherits from a person who died “intestate,” which means “without a valid will.” For example, Texas’ laws of intestate succession say that, if an unmarried person dies, that person’s surviving children will inherit all of the person’s assets. In this situation, too, you will need the local probate court’s help. The court will hear evidence about the deceased person’s family history, then apply the law of intestate succession and issue an order naming the heirs who are entitled to inherit the deceased person’s property.

Creditors Go to the Front of the Line During Probate

It is important to remember that, no matter who the person’s heirs or beneficiaries are, they will not have the first claim on the person’s assets. That distinction belongs to the person’s creditors. They are always first in line and have specific rights to make sure they are not forgotten in the probate process.

In most situations, whether your deceased loved one had a will or not, it is imperative to enlist the help of a competent probate lawyer. The probate process is highly specialized. Thankfully, most people do not need to use it more than once or twice in a lifetime.

Please contact us if we can be of assistance.