1. Misunderstanding the Rules for Probate
To be able to take the correct steps and meet deadlines, it is crucial for an executor to understand the process for a probate claim in Texas. The Texas State Law Library has a guide to probate that includes statutes, forms, e-books, and online resources with simplified information for the general public. Nonetheless, talking with an attorney about queries that relate to a specific probate claim may still be necessary. Contact the Law Office of Jason Carr with your questions, and to ensure your legal rights remain protected.
2. Waiting Too Long to Start the Probate Claim
The statute of limitations for admitting a will into probate is four years after the person’s death, as specified in the Texas Estate Code: Section 256.003. Failure to meet this deadline means the estate will pass under intestacy laws, which means it will be as if the decedent had no will. Four years may sound like plenty of time, but the process has the potential for various delays. For instance, locating a decedent’s will can take time if no one knows where to find it.
There are several additional reasons not to wait until close to the statute of limitations. First, bills for things such as mortgage payments and taxes need to be kept up with to avoid penalties and interest. Secondly, the heirs of the estate will be waiting and may become frustrated if the probate claim takes too long. Lastly, it is necessary to value assets at the time of death — called the “date of death values.” Making these valuations becomes more difficult as more time passes.
3. Distributing Assets at the Wrong Time
An executor is responsible for notifying heirs of the probate and distributing the assets at the appropriate time. A potential mistake is distributing assets either too early or too late.
Confusion may arise from the fact that some assets may be distributed immediately, whereas others require waiting. For example, the executor should distribute any non-probate assets as soon as possible. This includes any insurance policies, investments, and bank accounts that have a named beneficiary. Designating non-probate assets is common practice to provide beneficiaries with an inheritance sooner.
However, the executor should not distribute probate assets until creditors have had the opportunity to file claims against the estate. Creditor claims have precedence over bequests made in the will. This matters because it is possible for the estate to have insufficient assets after the executor has paid all claims. Distributing assets too early could result in the executor being unable to pay creditors in full. The executor would be personally liable for this mistake.
4. Lacking Accurate Records
Part of the role of being an executor is keeping accurate records. This means:
- Using an appropriate accounting schedule.
- Including full details about receipts and disbursements.
- Itemizing entries.
- Recording gains, losses, dividends, and interest payments for investments.
Depending on the complexity of the estate, working with a bookkeeper or accountant may be necessary.
5. Handling or Categorizing Assets and Debts Incorrectly
Each of the decedent’s assets and debts requires handling in different ways. For instance, the executor needs to close financial accounts, secure real property against break-ins, and pay federal and state taxes. The first step is to make an inventory of all assets and debts, along with their values. This is useful for four main purposes:
- Notifying creditors of the probate claim. To reach any unknown creditors, the executor should publish a notice in a local newspaper.
- Completing the forms for probate court.
- Liquidating assets to distribute the funds to heirs.
- Calculating taxes.
The next step is to categorize assets based on whether they are subject to probate. As mentioned above, beneficiary-designated accounts are not subject to probate. Other assets also fall into this category, including some types of jointly held property and assets in trusts.
Finally, the executor may need to make decisions about what to do with major assets, such as real estate. In the case the executor and other heirs want to sell the property, it may be appropriate to ask other family members if they are interested in purchasing it before putting it on the market. Heirs should also bear in mind that making repairs could increase the property’s value and make a sale more likely. However, if the decedent had unpaid mortgage bills, selling the property as soon as possible may be necessary to prevent a foreclosure.
6. Misinterpreting the Will
The large amount of legal language can make interpreting a will difficult for a layperson. If the executor determines the will means something different from what other heirs consider it to mean, disputes may follow. This is an even greater risk if the will contains any amendments or codicils.
7. Neglecting to Collect Mail
The executor should redirect all the decedent’s mail so that the executor receives any notices, claims from creditors, and statements about assets. Redirecting mail will also prevent the decedent’s real property from appearing abandoned.
How a Probate Lawyer Can Help
Even being aware of common mistakes does not necessarily ensure the probate claim process will be easy. Working with an experienced probate lawyer can ease some of the stress of dealing with administrative tasks, eliminate the risk of expensive errors, and give the executor peace of mind. For support with a probate claim in Texas, call the Law Office of Jason Carr at (214) 800-2366.