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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 23853
Experience:  14 yrs estate law, real estate. Wills/Trusts/Probate
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This is a question specific to Texas. A family member has

Customer Question

This is a question specific to Texas. A family member has passed without a will. How soon can probate be started? What typically would be the cost of this process?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Barrister replied 1 year ago.
Hello and thank you for using JA! My goal is to provide you with excellent service and help with your legal problem.
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Has anyone obtained a copy of the deceased's death certificate?
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How long ago did they pass?
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Is the person who is going to apply to be Administrator going to hire an attorney to assist or handle everything themselves?
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Thanks
Barrister
Customer: replied 1 year ago.

He passed less than two weeks ago. We assume the funeral home would have his death certificate since he was buried by them. Not being familiar with the process, I see from your question someone has to apply to be the Administrator. Another question then is Who could be eligible for that job?

Expert:  Barrister replied 1 year ago.
The first step would be to get a copy of the death certificate from the funeral home. They have to send off to the Dept of Vital Records to request copies of it and it will typically take 4-6 weeks to get it in. Once you get a copy of the death certificate, any family member or close friend can file a petition with the Probate court where the deceased passed to open a probate case and be appointed Administrator.
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Under Texas law, there is a requirement that the Adminstrator or Executor have a local attorney assist with the probate case and administer the estate. In Steele v. McDonald, 202 S.W.3d 926 (Tex. App. -- Waco 2006), the court held that a non-lawyer may not appear pro se in the capacity as an estate's independent executor. The court reasoned that, since the executor is acting in a representative capacity, appearing pro se would constitute the unauthorized practice of law.
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So there is no way getting around hiring an attorney.
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This is the general way that probate cases proceed. The first thing that needs to happen is someone would have to file to open a probate case at the Probate court in the county where the deceased passed. The probate court clerk will have all the paperwork in a packet. Once the applicant completes it, they file it with the clerk along with a copy of the death certificate and any will (if there was one). The clerk will set a court date where applicant will appear and the judge will officially name them Administrator of the estate. They will then have the power to gather all the assets of the estate, including bank accounts, stocks, investments, personal property, etc. They then have to file an inventory with the court of all the assets in the estate. Admin then pays all the expenses of the estate from any named creditors. They then prepare and file an accounting of all bills paid and debts settled.

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In Texas, a simple estate will be open for a minimum of four months from the date the Admin is appointed and notices are mailed to creditors. This term is mandated by statute and is instituted to allow creditors of the decedent an opportunity to file claims against the estate. In many cases, no claims are filed and the estate can be closed shortly after the expiration of the statutory notice periods.

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The Admin is also responsible for filing a final tax return for the decedent as well as for the estate. But I would suggest getting an accountant or CPA to handle that for you.

Once the minimum 4 months has passed and all debts have been paid, the Admin can disburse the remaining assets to the beneficiaries according to the terms of the will and file the final accounting and close the estate.

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Thanks
Barrister
Customer: replied 1 year ago.

This is very helpful information. Thank you. Would the state of TX have any "death taxes" that would be deducted from the estate?

Expert:  Barrister replied 1 year ago.
No, not unless the estate is worth over $5.25 million... TX doesn't have an inheritance tax on the beneficiaries and there is no federal inheritance tax either.
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So only if the estate was over $5.25 million would there be any taxes due.
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Thanks
Barrister
Customer: replied 1 year ago.

If that amount was there, would be more surprising than the untimely death. How about general, or typical costs of probate attorneys?

Expert:  Barrister replied 1 year ago.
That depends on the attorney. Some charge a flat percentage of 2-5%, some charge hourly $200-450, some will do it for a flat fee, and some use a hybrid approach.
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A lot of it depends on what the estate is worth. If you have an estate worth $100K, you are probably looking at $4-5K in attorney fees...
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Thanks
Barrister
Customer: replied 1 year ago.

Appreciate all of your input. There may be more questions to come, but I have other needs to attend to so nothing will be asked for a few hours.


 

Expert:  Barrister replied 1 year ago.
You are very welcome. Hope I was able to help a bit. You can always get back to me by posting a new question with "For Barrister" in the heading and the JA people will get it to me.
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Thanks
Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 23853
Experience: 14 yrs estate law, real estate. Wills/Trusts/Probate
Barrister and 9 other Estate Law Specialists are ready to help you
Expert:  Barrister replied 1 year ago.

Thanks so much for the positive rating and generous bonus, it is very much appreciated!

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It was my pleasure to work with you and help with your question. Please feel free to ask for me if you need help with anything in the future and I will do my level best to help or get you to someone who can.

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Barrister

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