The probate process evaluates wills in order to determine their legal validity. This video explains why you may need a probate attorney near The Woodlands if you have a claim in a will.

A will attorney can advocate on your behalf if you are an intended beneficiary of a will. Especially when a person has diverse assets or multiple beneficiaries, claims in his will may lead to the contesting of it. Contesting a will may extend the probate process as well. When you consult a probate lawyer, you can rest assured that your interests are represented during probate so that you can receive any assets designated for you in a timely manner.

There is a common misconception that if you die without a will, your personal belongings will pass to your next of kin automatically. In reality, with or without a will, the probate courts will determine how to distribute your assets, which may or may not be consistent with your true wishes. Avoiding probate in The Woodlands requires you to meet with a will attorney and specify how your possessions should be divided.

Ensure belongings go to beneficiaries
Wills ensure that certain belongings go to desired beneficiaries. Every probate court will review the will for validity and actually having a will, rather than an intestate estate, will speed up the probate process. In meeting with a will attorney, you can also outline how you would like certain assets to be used following your death. For example, you can bequeath a car to a family member and express your wishes that he sell it to support his education. Even though this stipulation isn’t binding, the will allows you to convey your final wishes in giving assets to your beneficiaries.

Limit family disputes
Courts only allow contesting a will in very limited circumstances. Usually, this occurs when there is evidence the will is not legitimate because the person making the will was not of sound mind. By drafting a will, you can help ease tension among family members in dividing your assets. Your will attorney can help you use specific language to ensure there is no doubt or confusion as to how you would like your assets divided following death.

Quantify your assets
If you haven’t drafted a will, a probate attorney may send inquiries to local banks and financial institutions to assess your financial situation. Your family members may also have to produce financial paperwork, including brokerage statements, government bonds and stock certificates. The purpose of this requirement is to ensure all of your assets exist and can be divided equitably. Creating a will helps avoid this step because you have formally outlined your assets and provided details of their value. You can also include a contingency clause assigning a beneficiary to any assets that you don’t specifically include in your will.

Want to learn more about probate bonds? Contact the Woodlands probate attorney who has experience in assisting clients in obtaining a probate bond.

What is a probate bond , and when would I need one?

A probate bond is a bond issued on the performance of an administrator or executor, and its purpose is to protect heirs and creditors from being harmed by the negligence or malfeasance of the administrator or executor.

For instance, if “John” is the executor of his father’s estate, and, instead of paying the doctor bills and splitting his inheritance with his brother he makes off with everything his father owned, his brother and the doctors can recover the amounts they would have been entitled to from the bonding company. Sounds good, right? The only problem is that obtaining the bond can be a costly stumbling block for potential executors or administrators. (An executor means there is a will, otherwise you have an administrator).

I have seen more than one case where the administrator or executor was simply unable to obtain a bond. Why wouldn’t you be able to get a bond? Well, applying for a bond is much like applying for a signature loan. If you need a $500,000 bond, but recently got turned down for a $250,000 house loan, you are probably not going to have much luck. Another reason you may not be able to get a bond is the cost of it. If the Judge has ordered a probate bond, you are not going to have access to the funds of the estate until AFTER the bond has been issued. The bond cannot be issued until after it has been paid for. Of course, if paying for the bond is a real issue, you probably wouldn’t be able to qualify for one anyway. In addition, the bond must be renewed, and new premiums are paid every year, meaning that the executor or administrator frequently feels pressure to wrap things up as quickly as possible. Also, even if you qualify for a probate bond, getting one often takes some time. Again, compare it to taking out a loan.

For all the reasons listed above, most attorney-drafted wills waive the requirement of a bond. If the will states that there is no bond required, and the named executor is the one submitting the will to probate, there will be no bond required. But what if a) there is no will; b) the named executor is not the one probating the will; or c) the will does not waive bond? Then whether or not you will be required to post a bond depends on three things:

• the agreement of all of the heirs,
• the existence of debts,
• and the Judge you are in front of.

If all of the heirs agree to waive the bond, and there are no unsecured debts of the estate, the Court will agree to waive the bond. If all of the heirs are in agreement, and there are unsecured debts of the estate, I have never had a Harris County Judge order a bond, and I have never had a Montgomery County Judge not order a bond.

I recently debated the issue of the bond with Judge Winfree, of Montgomery County (now retired) at great length, and he succeeded in convincing me that the legislature assumed there would be a bond required anytime there were debts, but he did not succeed in convincing me that it is a requirement of the Probate Code. But he doesn’t have to convince me, I have to convince him, and I, like every other probate attorney practicing in Montgomery county, failed to convince him. He did agree that if the creditors would waive the bond, then he would as well. I got the agreement of the creditors and, in a very minute way, made a bit of history by securing the very first waiver of an administrator’s bond in Montgomery county where the estate has substancial unsecured debts.

If you don’t have the agreement of all the heirs, and the will does not waive a bond, or the named executor is not the one probating the will, any judge will require a bond. The amount o the bond is based on either the value of the esate, or if the heris are in agreement, the amount of unsecured debt.

As part of the Proceeding to Determine Heirship, the courts will invariably appoint an Attorney Ad Litem to represent any heirs that the applicant may have either forgetten, defrauded, or perhaps simply doesn’t know about. The Ad Litem’s fees are usually between $400 and $1500, but vary greatly depending on the attorney appointed, and the amount of work which the attorney is required to perform. Many people who are forced to do a proceeding to determine heirship feel the appointment of the Ad Litem simply makes the proceeding take more time and money.

The feeling a widow might express is: “I’ve told the Court who my husband’s heirs are. No one is left out, so exactly for what am I paying this extra lawyer?” This sentiment is undertandable. If you have a single, long-standing marriage, with no extra-marital children, then the family situation is should be straightforward. A competent Ad Litem will usually review pleadings, speak with family members, and the individuals who may be used as witnesses, and verify that the witnesses knew the decedent well, and he never had any children other than those listed in the application. The Ad Litem may also verify that no one ever heard the decedent mention having a will made, and that he never took any other children into the home and treated them as his own. Some Ad Litems have asked my clients to provide death and birth and marriage certificates as well. The Ad Litem files an answer and a request for fees, and attends the hearing, usually asking the witnesses most of the same questions I have just asked them.

So if an Ad Litem is bringing out essentially the same information that the applicant has already provided, why do we need him? Because applicants may have an incentive to lie. Or, at least, an incentive not to be too curious. Let’s say that a deceased husband had been married before, but never really talked about it. Now he has died without a will. The widow gets her two witnesses and files her application for administration. However, when the Ad Litem is appointed, the Ad Litem realizes that neither of the witnesses knew the husband during his first marriage. So the Ad Litem contacts the ex-wife. It turns out there was a child born during the marriage. Suddenly there is another heir. Unfortunately, many situations can become far more comlicated. Not only is divorce becoming quite common, but so has the number of children born outside of wedlock. Somethimes the Ad Litem has a real job to do.