The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal issue, including those whose questions are addressed here, should consult an attorney for personalized advice on their specific circumstances.
You may not be aware of this, but attorneys are required to participate in continuing legal education. The State Bar of Texas requires each attorney to participate in 15 hours of continuing legal education each year. However, if you participate in over 33 hours each year, you will qualify for membership in the State Bar College. For over 27 years, I have attended the State Bar of Texas’ Advanced Estate Planning and Probate course as a part of my continuing legal education. This comprehensive course covers new developments in this area of the law, spanning over 25 hours. Every year, I learn a great deal that helps with the details of my practice. However, sometimes it is the small lessons that are the most beneficial. For example, one of the things attorneys often take for granted is that their clients understand the probate process and what is required for probate. This was brought home to me when, while probating an estate, a client brought one of their good friends or a relative for moral support. Most of these individuals are very inquisitive about the probate process, and so we spent some time reviewing it due to their genuine interest in learning about the process of transferring property. Therefore, in this week’s column, I thought I would review some of the documents that are common in the probate of an estate.
Organization is critical for managing any estate. Even for a modest and simple estate, there can be a considerable number of transactions and much correspondence. For any estate, there is always the risk that a beneficiary or other person may question the actions of the executor. Thus, the executor should take steps to organize correspondence and other paperwork, keep records of all financial transactions, calendar key deadlines, and review checklists to monitor the progress of the estate settlement.
Assembling the documents. One of the first steps any executor should take is to obtain and review, with legal counsel if necessary, all the pertinent legal documents that may affect the estate. This includes the driver's license and social security number of the deceased and the executor.
Living Will, Advanced Directive, or health care proxy. These are all names commonly used for the document that speaks about the moment of death or whether a person wants certain treatments at the moment of death. They may provide important information regarding burial requests, funeral services, and other related matters.
Powers of Attorney. Powers lapse on death. However, if a third party, in good faith and without notice of death, completed a transaction under the authority of the power of attorney, it may still be valid. If any significant transactions were completed near the time of the decedent’s death, you may want to investigate them.
Last Will and Testament. This document gives the Executor instructions on how to distribute the estate. The executor must follow, as far as legally possible, the wishes of the decedent expressed in the Will.
Revocable living trust. If a revocable living trust exists, then the trust, in combination with the Last Will and Testament, should govern most transactions. Be alert for any issues that may arise because of the use of two documents. Generally, they are not drafted in a style that is easy to read, let alone understand.
Letter of instruction. Any personal notes to provide guidance to you as to how the decedent would want you, as executor, and any trustees to handle matters can be quite helpful, even if not legally binding. These letters should be used to guide the executor in communicating with family members, key contacts, and managing assets such as bank accounts and insurance accounts. They are intended to help the executor identify all the assets and locate them.
Personal property list. Some decedents assemble a listing of how their personal property should be distributed. This is commonly done even if the Will is silent as to that property. However, a well-written Will may reference such a list so that they can be incorporated with the transfer process. Be cautious; if the list is not prepared in a manner that makes it legally binding, and most are not, then while you may want to carry out the decedent’s wishes because of your moral obligation to do so, you must be constrained by the legal provisions of the Will.
Insurance trust. A common estate planning technique is to have a trust own insurance on your life (or the joint lives of you and your spouse). On your death (or on the death of the last of you and your spouse in the case of joint life, also called second-to-die insurance), the insurance trust may receive substantial proceeds that may be used to fund loans to the estate or to purchase assets from the estate to provide liquidity. The trust cannot pay the decedent’s estate tax directly.
If you are handling the estate of a loved one, then gather as much of the above information as you can and take it to an attorney who practices in the area of estate planning and probate. They will be able to answer your questions and guide you through the probate process.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com ©