Tag Archive for: executor

Wills v Trusts

Wills v. Trusts: What’s the Difference?

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Wills v Trusts
What is a Will?

Often, the first 10 minutes of an estate planning consultation involve explaining the differences between a Last Will and Testament (or, simply a “Will”) and a trust. Each may have a critical role to play in a client’s estate plan. A Will is a testamentary instrument, which is a lawyerly way of describing a document that does not become effective until an individual’s death. In other words, a Will is merely a stack of paper with words and a few signatures until the individual executing it (called the “testator”) has passed away. Texas law provides stringent requirements for the proper execution of a legal, valid Will.[1] After the testator’s death, his or her Will must be “admitted to probate” by a court of appropriate jurisdiction. This requires someone (usually the executor) going before a judge and proving up all the various requirements of the Will. Only then can a personal representative take control of the deceased testator’s property, wind up his or her affairs, and distribute the estate in accordance with the Will’s provisions.

What is a Trust?

By contrast, a trust describes a relationship between three parties: (i) the settlor, (ii) trustee, and (iii) the beneficiaries. Thus, a trust is an abstract intangible thing, so it is not a document at all. Also, unlike a Will, a trust may become effective during the grantor’s life, or at death, and there is no requirement that a trust be proved up, authorized, or otherwise sanctioned by a court. To establish a trust, a settlor simply entrusts property to a trustee, who accepts a legal obligation to manage, administer, and distribute that property for the benefit of the beneficiaries. Each of these parties may be a single individual or a group of people. Even though the trust itself is amorphous, the terms, conditions, standards of distributions and other guidelines for this trust relationship are often memorialized in a written document called a “trust instrument.” A trust instrument may be a stand-alone document, or it may constitute a section in a testator’s Will. Either way, a single trust instrument will often govern many different trusts.

Trusts can take an endless variety of forms and serve myriad purposes. Many trusts are created to achieve special tax, asset protection, or wealth transfer goals. But when clients are weighing their options between a Will and a trust for estate planning purposes, they are generally thinking of a “revocable living trust.” This is commonly structured to have an individual or couple simultaneously serve as the settlor, trustee, and initial beneficiary. Revocable living trusts are similar to Wills in that they dictate what will happen with a person’s property when he or she dies. Thus, they remain a standard tool of estate planning attorneys.[2] 

Deciding whether a Will or a (revocable living) trust best matches a given situation will depend on the particular client’s needs, goals, outlook and other circumstances. Often, a Will is all that is needed in Texas to plan a person’s estate. In some circumstances, however, a revocable living trust will better address the situation. Understanding the fundamental distinctions between a Will and a trust is an important starting point to both a client’s decision about the overall structure of his or her estate plan, as well as the client’s ability to maintain that estate planning structure in the years to come.

Spencer Turner

Spencer Turner is an associate attorney at Farrow-Gillespie Heath Witter LLP. Since obtaining his license to practice law in 2016, Mr. Turner has focused his legal efforts primarily in the trust and estates arena. He has been featured as a speaker on various aspects of the probate process at several seminars hosted by the National Business Institute. Spencer is a graduate of from Baylor University School of Law.

[1] See Ch. 251 of the Texas Estates Code.

[2] Mr. Turner and Christian S. Kelso, Esq., a partner at Farrow-Gillespie Heath Witter LLP, recently co-authored an article for the State Bar of Texas’ Continuing Legal Education program. The article is entitled The Alchemy of Revocable Trusts: Creating the Perfect Solution for Each Client’s Problem, and may be found among the written materials for the “Handling Your First (or Next) Trust 2021” webcast.

Is it too late to probate the will_crop

Is it Too Late to Probate the Will?

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Is it too late to probate the will

You’re going through a loved one’s papers and come across a will. The person who wrote the will (a Texas resident) died years ago. What do you do?

First Things First

First, you should surrender the will to the county probate court where the deceased person lived. Texas law requires you to file with the court the original version of the will of anyone whom you are aware is deceased.[1] Surrendering a will to the county makes it available for any beneficiaries who might want to probate the will.

To Probate or Not to Probate

Texas imposes no legal obligation to probate a will. If a will is never offered for probate, the property of the testator, the person who made the will, passes according to the Texas laws of intestacy as if they died without a will. However, you might want to offer the will for probate if it has favorable terms, or to transfer title of any real property that belonged to the testator.   

You don’t have to go to court for title to pass by intestacy. But if you try to sell real property you inherited, the title company might require you to take steps to clear title. That might include asking the probate court to determine the heirs of the person who died and how his or her property passed under Texas law. If you must go to court anyway, you might consider probating the will you found.

Four-Year Deadline

As a rule, courts are not supposed to admit a will into probate more than four years after the testator has died.[2] If it has been more than four years, an exception permits wills to be probated if the applicant offering the will for probate provides an equitable explanation for the delay.[3]

Unfortunately, the reported cases in this area of law do not provide a predictable basis for determining whether the applicant is “in default” for the delay. This is because these cases are so fact specific.

For example, in one case an impoverished widow was permitted to probate her husband’s will, even though he died more than five years before she learned he owned royalty interests.[4]

In another case, a successful attorney with an oil and gas practice, who learned about mineral interests 14 years after his father died, was told he could not probate his father’s will. The applicant was found to be in default because the son “should have known that unexpected events [like discovering mineral interests] often happen in life.”[5]

A recent case from the Supreme Court of Texas provides another example of how courts focus on the particulars of the applicant’s situation.[6] In this case, the independent executor tried to probate the will of a deceased man’s wife because the husband failed to probate his wife’s will during his lifetime. The courts held that the executor could not probate the will on behalf of the husband because the husband had failed to do so within four years of the wife’s death. However, the supreme court also found that, in this particular case, the executor had standing to offer the will in the executor’s personal capacity and was not at fault for the delay.

Even if the person who made the will died more than four years ago, it might be worthwhile to try and probate the will anyway, particularly if the applicant did not personally delay in offering the will for probate.

If you have found a loved one’s will long after their passing, and need help surrendering it to the court or would like to probate the will, seek the counsel of an experienced probate attorney.

[1] Tex. Estates Code § 252.201.

[2] Tex. Estates Code § 256.003(a).

[3] St. Mary’s Orphan Asylum of Tex. v. Masterson, 122 S.W. 587, 592 (Tex. Civ. App. 1909, writ ref’d). The Estates Code provides that the applicant not be “in default” in offering a will for probate more than four year after the death of the person who made the will.

[4] Kamoos v. Woodward, 570 S.W.2d 6 (Tex. Civ. App.—San Antonio 1978, writ ref’d n.r.e.).

[5] In the Estate of Rothrock, 3112 S.W.3d 271 (Tex. App.—Tyler 2010, no pet.).

[6] Ferreira v. Butler, 575 S.W.3d 331 (Tex. 2019).

Chris Wilmoth

Hon. Chris Wilmoth is a seasoned probate, guardianship, and trust litigator. He also conducts mediations and accepts appointments as a special judge. Mr. Wilmoth served as Judge of Dallas County Probate Court No. 2 from 2011 through 2014. He has been named one of the best lawyers in Dallas by D Magazine each year since 2018.

Probate Law | Farrow-Gillespie & Heath LLP

Dallas Probate FAQs

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Can I probate a Will in Dallas without an attorney?

Unfortunately, no. The Probate Courts do not allow individuals to appear on behalf of themselves. For all purposes in Probate Court, you must hire a lawyer.

I’ve been appointed as the Executor of a Will.  What am I supposed to do?

The first things you should do are (1) find and secure the original Will; and (2) contact a probate attorney to assist you. Your probate attorney will explain exactly what will happen, and exactly what you need to do.

I am the Executor, and I have the original Will.  Why does it need to be probated?  Why can’t I just give away the property according to the Will’s terms?

Although the Will names you as Executor, the law says you are not officially the Executor until you qualify and receive your Letters Testamentary from the probate court. You need authority from the probate court to transfer the property to the new owner — especially if any of the property to be distributed is held under a “title,” such as a house, vehicle, bank account, or real estate.  By probating the Will, you obtain the authority (by receiving Letters Testamentary) to legally distribute the decedent’s property and to transfer ownership to the Will’s beneficiaries.

What if I want to contest a Will? 

Contact a probate attorney immediately. If you want to contest a Will, you have a limited time in which to do so; and under the rules of Probate Court, you cannot proceed without the assistance of an attorney.

What if the Will doesn’t provide for an independent representation?

If the Will does not provide for an independent representation, or if the Will is otherwise not in order, the process is lengthier, more difficult, and significantly more expensive. (This situation emphasizes why it is important for anyone who owns property to have a properly drawn-up Will.)

What if there is no Will?

If there is no Will, and the decedent owned property worth less than $50,000, it is possible to file a “Small Estate Affidavit” to transfer the property. If the decedent owned property worth more than $50,000, the next of kin (or other person with an interest in the estate) must retain an attorney to have the Probate Court legally declare the names and shares of the decedent’s heirs.

All the deceased person owned was his or her home. Does the Will still need to be probated?

Yes. Otherwise, it is not possible to maintain the “chain of title” necessary to protect and transfer ownership in the house. However, an abbreviated and less expensive form of probate is available in Texas when a decedent owns only a home and no other significant property. The procedure is called a “Muniment of Title.” Be sure to tell your probate attorney at the initial consultation that you believe the only property in the estate is the decedent’s house.

I have looked everywhere for the original of the Will and can’t find it. What should I do?

It may be possible to probate a copy of the Will. Also, it may be that the decedent had a safety deposit box to which you do not have access. We can assist you in finding the box and obtaining a court order to gain access to it.

Probate Law | Farrow-Gillespie & Heath LLP

The Probate Process for a Valid Texas Will

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The Executor of a Will has the responsibility of submitting the Will for probate. Under the rules of the probate courts, an individual desiring to probate a Will must be represented by an attorney; and the attorney must appear in court on behalf of the executor of the will whenever a court appearance is required. The first steps an Executor should take are (1) finding the Will and putting it in a secure place; and (2) contacting a probate attorney.

If a Texas Will properly provides for an Independent Representation, the role of the probate court (and thus the expense to the estate) is minimized — and the procedure is quick and easy. If the Will is in order, and no will contest is filed, the Will can be probated in as little as two or three weeks, at a fixed fee.

Assuming that there is no will contest or other significant delay or complexity, the usual procedure for probate and administration of a valid Texas will naming an independent executor is as follows:

  1. As your attorneys, we file the original will and an application for probate with the probate court.
  2. A 10-day waiting period ensues while the court publishes notice that the will has been filed.
  3. After the 10-day waiting period, a hearing is held on the application for probate.
  • The Executor of the will (or someone close to the decedent whom the Executor designates) must accompany us to the hearing.
  • If the will is being probated in Dallas County, the hearing is held on the 2nd Floor of the Records Building, on the corner of Main Street and Houston, in downtown Dallas.
  • The Executor must testify as to the date of death and other facts.  We will go over the testimony with the Executor in advance of the hearing, and we will answer any questions that the Executor has about the hearing or any other aspect of probate.
  • To serve as Executor, a person must not be
    • a legally incapacitated person;
    • a convicted felon;
    • a non-resident of Texas, unless the person appoints a resident agent in this State; or
    • a person whom the court finds unsuitable.
  1. The Executor must sign the Executor’s Oath, which will be notarized and filed with the court clerk.
  2. After the hearing and the filing of the Oath, the court clerk will issue “Letters Testamentary.” The Letters Testamentary are certified documents that serve as authority for the Executor to do everything that must be done – e.g., transfer title to property, access bank and brokerage accounts, sell assets, distribute cash and other assets to the beneficiaries, etc. — to administer the estate.
  3. We will send the following notices; and we will then file with the court clerk proof that the notices were sent:
  • Mandatory published notice (in the Daily Commercial Record) to general unsecured creditors.
  • Mandatory notice by certified mail, and a copy of the will, to each of the named beneficiaries.
  • Mandatory notice by certified mail to each secured creditor, such as mortgage holders.
  1. The Executor must arrange for a final tax return to be filed for the decedent, and possibly for a tax return to be filed on behalf of the estate. We can recommend a CPA for those tasks, if you do not already have one who is experienced in filing estate returns, or we can do the returns ourselves, as you prefer.
  2. The Executor must contact all insurance companies with which the decedent held life insurance policies, and all institutions at which the decedent held retirement accounts, to ascertain whether the proceeds are probate assets or non-probate assets. We will do these tasks for you if you prefer; and we can advise how to distribute the proceeds from these assets.
  3. The Executor is responsible for making a written Inventory of the estate. We can assist in this process to whatever degree the Executor prefers.
  4. In the event the deceased person owed money to creditors, and the creditors file a valid claim with the Executor, the Executor must pay those valid claims out of the estate’s funds.
  5. After the Inventory is completed and filed (or an affidavit of completion and delivery is filed instead), and valid creditors are paid, the Executor must proceed to carry out the terms of the will.  The Executor may need to sell certain assets, but in any event, the Executor must transfer and distribute all of the bequests to the named beneficiaries. We can assist you in that process at an hourly charge, including drafting any deed transfers or other documents that are necessary. Once Letters Testamentary are obtained in an Independent Representation, no permission from or involvement by the court is necessary to sell any of the assets, or to distribute the bequests. However, the Executor should keep good records of every transaction; and in some estates, it is a good idea to obtain receipts and releases from each beneficiary as his or her distribution is completed.
  6. Once the terms of the will are satisfied, the process is complete. Nothing further needs to be filed with the court.