Parker County Today February 2018 | Page 13

U nderstanding P robate : the basics By Jimalee Splawn Are there different types of probate administrations? Most probate cases are handled as independent administrations if the will provides for that process or if all beneficiaries or heirs agree. The independent admin- istration is quicker and less expensive as there is limited court involvement because the independent executor/ administrator acts, for the most part, independently of the court. A dependent administration is a court supervised administration. The executor in a dependent adminis- tration must get approval from the court for all actions. This makes a dependent administration more expensive and burdensome. A dependent administration might be preferable however, if there are creditor problems, feuding beneficiaries or heirs, or difficult assets. In limited circumstances, probate options without admin- istration are available. If you have questions involving wills, estates, or probate matters, you should seek the advice of an attor- ney who is experienced and skilled in such matters. This article is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to a particular probate issue. Jimalee Splawn is an attorney with Harris, Finley & Bogle, P.C. She began her practice in 2006 and focuses on estate planning and probate matters. When is probate necessary? If a decedent owned any property evidenced by title in his or her name at death, then in most cases probate will be required. The property cannot be sold or transferred to the beneficiaries or heirs until the decedent’s name is removed from the title. Probate records become a link in the chain of title, demonstrating that the decedent’s property has passed to someone else. The assets that pass pursuant to a decedent’s will, or pursuant to state law if a dece- dent did not have a will, are called testamentary assets. If all of the decedent’s assets were non-testamentary in nature, a probate proceeding may not be necessary. For exam- ple, many assets such as life insurance proceeds, IRAs, pension plans and retirement accounts pass outside the will to beneficiaries named by the decedent. Additionally, property held by the decedent and others as joint tenants with rights of survivorship, such as bank accounts and certificates of deposit, pass outside the will directly to the survivor. Finally, property held in trust will pass under the terms of the trust rather than the terms of the decedent’s will. What is probate? When a person dies (“decedent”), his or her estate may need to go through probate. Probate is the legal process wherein the estate of a dece- dent is administered through a judicial process. A decedent’s estate is the real and personal property that an individual owns at his or her death. If the decedent left a last will and testament directing how his or her property should be distributed after death (the decedent died “testate”), the probate court must determine whether the will is valid and if it should be given legal effect. If the valid- ity of the will is successfully proven, the person named under the will to administer the decedent’s estate (the “executor”) will be legally appointed to administer the estate. A will must be admitted to probate before a court will allow the distribution of property to the beneficiaries according to its terms. Generally, the original will is required for probate. If a person dies without leaving a will (or a valid will), and the decedent’s estate needs to be administered, the probate court will appoint an “administrator” to administer the estate and ulti- mately distribute the decedent’s property to the decedent’s heirs. The heirs are determined accord- ing to the state’s descent and distribution statutes through the judicial process. Generally, probate proceedings must be commenced within four years following the death of the decedent. Probate proceedings are handled in the probate court or county court of the county of the decedent’s residence. In general, the probate process involves collect- ing the decedent’s assets, liquidating liabilities, paying necessary taxes, and distributing the dece- dent’s remaining property to the decedent’s benefi- ciaries or heirs. 11