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What is probate and why does it matter?

Written by Gardale Hatley on Friday, 30 May 2014. Posted in Palmore Hatley Blog, General

Probate doesn't have to be a scary process, with a proper will it can be simple.

Probate is, simply stated, the process by which assets from a deceased person's estate are disbursed.

Most probate proceedings are independent in nature and require minimal court invovlement. However, when the idea of probating someone's will comes up, it can be a bit frightening. But with the right documents and right help, the process can be simple and quick.

There are of course horror stories about people who go to simply probate a will and end up in years of administration. These are the EXTREME exceptions to the rule. They are the most grievous examples from among many different experiences.

When I'm in probate court, without fail, the most difficult cases are one's that either don't inovolve a will or worse, involve a poorly drafted will. In Texas, probate can be very simple if you leave a properly drafted will.

The following is a very simple outline of the probate process for Independent Administration in Texas. 

Starting the Probate Process...

Initiating the probate process is actually fairly easy. Whether or not the Decedent died with a Will, an application for probate will need to be filed in a Texas Probate Court.

Once the Application has been filed, Texas probate law requires that you must wait approximately 2 weeks before you can have a hearing on the Probate Application for the Court to determine the necessity to open the Administration of the Estate and/or to recognize the Decedent's Will as valid.

During the 2 week waiting period, the County Clerk posts a notice at the courthouse that an application has been filed for probate. This posting serves as notice to anyone who might want to contest the Will or administration that they have a certain number of days to do that. If they fail to file their contest within that period of time, the Court can move forward in opening the administration and/or recognizing the validity of the Will.

Once the waiting period has passed, a brief hearing will be conducted before the probate Judge.  At that time, the Judge will recognize that:

  1. the Decedent has died,
  2. that the Court has jurisdiction over the case (i.e. the ability to dispose of the matter)
  3. that the person applying to be the Executor is qualified to serve, and
  4. that either the Decedent died without a Will or that the Will he left was valid.

Once the court makes these determination and few others, the court will admit the will into probate and the executor will be issues "Letters Testamentary" that allow the executor to begin working on behalf of the deceadent's estate.

The Texas Estates Code requires that executors and administrators in any probate proceeding complete two requirements. While additional requirements may be imposed as a result of the specific type of probate you employ, every executor or administrator will be required to:

  1. Publish a Notice to the Creditors and 
  2. File an Inventory of the Estate Assets

The Notice to Creditors is a notice published in a newspaper in the County in which the probate proceeding is pending. The notice simply informs any potential creditors of the Deceased that the probate proceeding has been opened. It also tells them the identity of the Executor and the address of their attorney, and it notifies the creditors that they must file a claim against the estate if they desire to be repaid for their outstanding debt. 

The Inventory of the Estate Assets is a detailed listing of all of the assets that were owned by the Decedent as of the date of his or her death. This listing must be provided to the Court within 90 days after the Executor is appointed, and it informs the Court of those assets with which it should be concerned in the probate administration. 

Texas Supreme Court To Tackle Same Sex Divorce

Written by Gardale Hatley on Tuesday, 05 November 2013. Posted in Palmore Hatley Blog, General

Same-sex couples can't get married here, can they get divorced here.?

Texas Supreme Court To Tackle Same Sex Divorce

The Texas Constitution bans same-sex marriage, but what if you get married somewhere else and relocate to Texas. Can you then get divorced in Texas? That issue is about to go before the Texas Supreme Court.

The Court is scheduled to hear arguments Tuesday on whether Texas can grant divorces to same-sex couples who married elsewhere. Both cases involve same-sex couples who married legally in Massachusetts.

Texas Attorney General Greg Abbott is set to argue that state law won't allow Texas to recognize the divorces because that would validate the marriage.The hoping-to-be-divorced couples will argue that Texas' Constitutional ban, approved in 2005, is in direct conflict with the  U.S. Constitution. Of some importance is the recent US Supreme Court ("SCOTUS") decision that struck down President Clinton's Defense of Marriage Act. The Defense of Marriage Act ("DoMA") was a Federal ban on same-sex unions. This summer the SCOTUS ruled that the DoMA treats same-sex couples unequally. (I promise, we're almost out of acronyms.)

At the same time the SCOTUS has deferred to the states to handle the issue of same-sex marriage. The Texas cases are another attempt to force the Supreme Court's hand in deciding the issue.

The country as a whole has flipped on this issue. Back in 1996, around the time of the enactment of DoMA, 68% of Americans opposed same-sex unions. Today that number sits at 48%.

Don't hold your breath, the Texas court is not expected to rule for several months.

Texas Community vs. Separate Property

on Monday, 07 October 2013. Posted in Palmore Hatley Blog, General

Sorting through the "stuff"

Texas Community vs. Separate Property

When we talk with clients in divorce and estate planning matters the idea of community and separate property inevitably comes up. Texas is a community property state, meaning that when a court seeks to divide up say a martial estate in a divorce, the court first determines what is separate and what is community property. The key is that separate property is never part of a divorce division. Separate property is the property of that spouse and is not on the table. Community property is squarely on the table for a “just and right” division of assets.

"Separate property" is property either

  • owned or acquired by a spouse before marriage, or
  • acquired by a spouse during marriage by either
  • gift or
  • inheritance.

The date you acquire property is the key, everything before the marriage is separate, everything after, with a very few exceptions is community. Separate property can “mutate” or change forms, for example a wife may have an amount of cash that is her separate property, she can then purchase an item with that cash and the item, even if purchased during marriage is her separate property.

As far as gifts go, we’re dealing with intent. A gift includes any Christmas or birthday gifts from one spouse to another during the marriage, regardless of the funds used to purchase that gift. So if community funds are used to purchase the gift, it doesn’t matter, it’s going to be separate property.

The law presumes that all property is community property unless proven otherwise. Therefore a court will require you to prove by clear and convincing evidence that each item is separate property.

Community property is everything else. Now what about interest or proceeds from separate property. In Texas, earnings from separate property are community property. So if a husband has a rental home and receives a monthly rent, that rent, upon marriage, is community property.

What about mixed property? This comes up quite a bit, especially when we’re dealing with large purchases, i.e. cars, homes, etc. For example, let’s say a home is purchased for $100,000 dollars using $25,000 down of a wife’s separate property. In that event the 75% of the value would be community while 25% would be separate.

Reimbursement will be its own blog post, but the basics of reimbursement are that one estate, whether a husband’s separate, wife’s separate, or the community estate needs to be reimbursed for some action or benefit given to another estate. For example say a husband owned a car before marriage but still owed money on the note, then, during marriage, community funds were used to pay off that note. The car is still the husband’s and the court cannot use it for a just division, however, the community estate can make a claim for reimbursement for the funds used to pay the note down during marriage.

All marital property can be traced to either community or one party’s separate estate. How property is characterized is crucial in determining a just and right division of property.

Palmore Hatley PLLC

Call Nearly Me Technologies(936) 539-0298


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