What’s The Hold Up? The Probate Process Meets Family and Creditors. Justin Crain, Partner

What’s The Hold Up? The Probate Process Meets Family and Creditors. Justin Crain, Partner

My great grandma inherited the farm where she worked when the owner died. The owner’s children had all passed away before him, and he said, in his will, that she was the hardest worker and he left her what she had worked so hard on for all her life – the farm. The deed for property transfer was half a page long and transferred title to hundreds of acres of land. Fast forward to today and look at the large stack of legal documents involved in purchasing and selling property. The law has changed over the years, and in many instances, it is more complex today than it used to be.

Unlike stories of days past, where Plano was all farmland and you could go to the judge’s house in McKinney to get your will taken care of on the weekend over coffee, the process today is a little more complex, just like the roads and buildings that have grown to service the expanding population. Today, there are standing orders in the probate courts of the DFW Metro area stating you are required to have an attorney. For example, Collin County has the following posted, “TEXAS LAW REQUIRES REPRESENTATION BY ATTORNEY. Chapter 81 of the Texas Government Code requires that a licensed attorney represent the legal interests of any person serving as the administrator or as the executor of an Estate. The Judge of the Collin County Probate Court cannot appoint a person as the administrator or the executor of an Estate unless that person is represented by a licensed attorney. All persons seeking to be appointed as the administrator or as the executor of an Estate must be represented by an attorney.”

So, people ask, “what’s the hold up?” why is this process more involved than it was many years ago? Although there is not one simple answer to that question, a broad generalization is that more people sue and disagree openly in court today than they did in the past. As a result, more laws exist to manage those situations. In the context of proving who should receive assets after someone has died, there are two major components to the process that take more time than you might expect: 1) proving that everyone agrees and 2) proving that creditors are satisfied.

Proving Everyone Agrees. Part of the probate process is giving everyone notice of what is going on and giving them enough time to agree or disagree. For example, the very beginning of the process starts with posting public notice, for a required minimum of 10 days, stating a will has been offered to the court and someone is asking to be named as the executor. This gives time for anyone interested in the estate to find out about the will and who is wanting to be the executor. This also gives people the ability to contest if necessary. After an executor is officially confirmed in court, the executor is then required to give notice and (hopefully) get agreement from everyone named in will as part of the proving process. If at any point someone disagrees, everything must come to a stop, responses have to be made with the court, and often additional court hearings must be had to work out the disagreements.

Proving that Creditors are Satisfied. Another part the probate process is proving that there are no creditors, or that all creditors are satisfied with the payments that they have received. Once an executor is officially confirmed in court, the executor is required to post notice to creditors that they are the confirmed executor and that they can be contacted should anyone believe the estate owes money for any reason. This notice gives 90 days for creditors to make their claims. If any claims are made against the estate, the executor is required to pay the debts or negotiate with creditors until they are satisfied.

Getting family to agree on what to eat for dinner let alone on everything written in a will is nearly impossible. Contact us today to learn how trust planning can help your family avoid the probate process when you pass away.

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