muniment of title

Ways to avoid formal probate. Losing a spouse doesn’t necessarily mean probate court!

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After losing their spouse, many people don’t contact an probate attorney because they believe that everything just goes to them immediately.  But this way of thinking may cause more harm down the road.  Nothing in life is absolute except death and taxes, so at least consult an attorney to make sure there is nothing you should do or to find out what your time limits are with regards to probate.  Here are a few cases where waiting caused more problems:

  1. Jane Doe dies and her husband Don doesn’t probate her will.  Four years pass, and then Don Doe dies.  Since Jane’s will was not probated within the 4 year statutes the only alternative is to probate as “muniment of title” to clear title to the house or dreamstimesmall_13989596.jpgcars.  In this case there is no formal probate of Jane’s estate which may create problems with certain asset at financial institutions and may force the beneficiaries to pay all debts prior to probating.
  2. Jane Doe dies and her will isn’t probated because her husband, Don Doe, doesn’t want to waste his money.  Years later  Don learns that there are assets in both of their names that need to be probated.  Jane’s will can not be probated after 4 years because Don is the one at fault for not probating.  Don goes to an attorney and finds out that since Jane had children from a prior marriage, they take her 1/2 instead of him.
  3. Sarah Jones dies and she does not have a will.  Four years pass, and Mike Jones tries to sell their house.  Just prior to closing on the house, Mike finds out that the house is still in both his and Sarah’s name.  Mike contacts an attorney to probate and must wait more than 30 days to get the probate finalized, so he loses the sale on the house.

As you can see there are many different situations that warrant consulting an attorney to ensure probate is not necessary after the death of a loved one.  While there are many different reasons that may take you into probate court, there are ways to avoid probate court such as:

When there is a will:

Muniment of Title – while this process requires you to file in probate court, you are not opening a formal administration so once the court signs an order you are done with the probate court.  So if you find that all the deceased person’s unsecured debts are paid and you just need to transfer title to the assets, have your attorney probate the will as a “muniment of title” which transfers title only and does not open a formal estate.

When there is no will:

Affidavit of Heirship – when there is no will, there is an informal process of having an “affidavit of heirship” prepared by an attorney and filed in the county real property records.  This is not a costly process and it will benefit the parties in the long run.  Don’t try to do one yourself, as mistakes will end up costing more in the long run. Do this now rather than later because witnesses may die, move away, not remember, etc.  This document will clear up title to property and vehicles so that the parties can move forward in life and not be held back when trying to sell such assets.

Determination of Heirship – This process is similar to the Affidavit of Heirship above, but it involves going to the probate court, having them appoint an attorney ad litem to verify the heirship information and signing an order on who the heirs are in an estate.  This process may be required of certain financial institutions that do not want to rely upon a “Affidavit of Heirship” and who may want the Judge to make a formal finding.

Small Estate Affidavit – This process is for very small estates under $75,000.00 (not counting exempt assets) or when trying to transfer the decedent’s homestead to their spouse.  The form is prepared and filed with the probate court.  The judge will then approve the Small Estate Affidavit to allow the transfer of assets to occur.  Keep in mind that this form will not transfer title to real property (other than the homestead), so if there is no spouse (so no homestead) or other rental real estate then this form won’t work.

 

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Common Mistakes Women Make in Estate Planning!

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A large amount of women hold a substantial amount of wealth in this country, however, many do not take the correct steps to protect their assets.  It’s a simple fact that Women live longer than men!  By the time a woman is 85+ she will outnumber men by 25% and she is 9 times more likely to live past 100 than a man.  When the husband gets ill, becomes disabled or passes away, it is the WIFE who is left to deal with the couples finances.  Therefore, it is necessary for women to get more involved in the couple’s finances well before any of these life changing events occur.  What should a Woman avoid?

Putting off Estate Planning. Probating an estate without a will takes longer, cost more money, requires more court involvement and the state law determines who gets your possessions. But the biggest reasons you should have a will is to keep the family harmony! There’s no excuse for putting your family through the drama of trying to probate an estate without a will!

Trying to Do It Yourself! There are numerous ways to transfer assets upon death and a will is just one of them!  There are also numerous documents you may need depending upon your own circumstances.

  • Who gets your stuff once you pass?
  • Who gets the responsibility of being your executor and what does that mean?
  • Who makes decisions for you upon disability or incapacitation?
  • Who makes burial decisions once you pass?
  • Do you need a Special Needs Trust now or upon your death so your spouse or child doesn’t lose disability benefits?

These are all good questions to iron out with a professional!  The cost of preparing a will by using a professional should not prevent you from being prepared.  You can spend a little now or a lot later!  However, the main reason you should leave it to the professionals is because doing it your self means there is good chance that you will make a mistake!  I have had small and large estates where the person used a computer form incorrectly and it left us trying to figure out what they wanted to accomplish and cost the beneficiaries additional unnecessary expenses. I have also had clients write their own will giving away each of their assets to a specific person, but they forgot about after acquired items or potential future litigation.

Failing to Understand your financial situation. Many women find themselves lost when their husband passes away or becomes incapacitated because he was the one that handled the finances. While you may not want to be the one to deal with the bills on a daily basis you should always know what assets you have as a couple, how those assets are disposed of upon death, and what your estate plan is as a couple.

Failing to Probating Husband’s Estate.  Women are more likely than men to put off probating their spouses estate.   Many women think that they get it all so there is no need to probate, but this always causes problems down the road.  It is necessary to probate the will to transfer assets such as, bank accounts, investment accounts and real estate.  What happens when you want to sell or refinance your house and it is still in both names?  What happens when you pass away and your children try to probate your estate and there are joint accounts or property?

In Texas, a Will can only be probated within 4 years of death unless there are extenuating circumstances and then it can only be probated as a Muniment of Title.  So waiting to probate a Will seriously limits your options!   Do you really want your children to have to deal with your husband’s estate years down the road?  Do you really want the Court to tell you that you now only own one-half of your house because you failed to probate?

If your husband doesn’t have a Will, then it is important to probate now rather than later!  The main reason is because you or your children may not be able to find witnesses in 10 or 20 years.  So as you can see it is very important to consult an attorney after your spouse dies to discuss the ways you can go about making sure you preserve your rights.

Failing to Consider the Possibility of Incapacity.  Women live longer and are more likely to be the caregiver of their husbands or parents, so it is likely that a woman is going to have to deal with long-term care during her lifetime. For this reason, it is important for women to be informed, involved and understands her financial affairs.  Here are a few questions you need to discuss with your estate planning attorney are:

  • Do I need a Guardianship Designation? It lets you chose now rather than allowing a Court to decide who will have control over your person and finances if you become incapacitated or the POA’s are not enough.
  • Do I need to provide for a Special Needs Trust for disabled or incapacitated spouses or children? If your spouse or child receives financial assistance, you would not want to leave them assets that would affect this assistance.
  • Do you need a Lady Bird Deed? This tool could help preserve your home to be left to your children at your passing being used to pay your creditors.

Failing to Consider Burial Plans.  Since you will likely outlive your husband, have you considered that it will be up to you to make the funeral plans after his passing.  Many women are too upset about their loss to handle these arrangements so it is left up to the children or funeral home.  But what if you and your husband could make these plans in advance of either’s passing?  This doesn’t mean you have to purchase burial plots and pay for burial plans!  This just means you have a written plan in place and designate an agent to carry out this plan after you are gone.  It makes sense to have such a plan because it is easier on the remaining spouse who has to deal with the loss or with the spouse’s other family members.