[m-w] Re: will

  • From: Kathi Pieper <kathi.pieper@xxxxxxxxx>
  • To: m-w@xxxxxxxxxxxxx
  • Date: Tue, 16 Jun 2009 10:49:13 -0600

Interesting article.  I found this one that seems to address our situation a
little more closely.
*Independent administration is what it sounds like: administration of an
estate independent of the probate judge. In this situation, the court
appoints an Administrator who submits an inventory of all assets and a list
of people who owe money to the estate. After the inventory is filed, the
administration of the estate continues without the probate judge’s approval.
More than 80% of the estates probated in Texas are independently
administered.

Texas law allows a testator (a person writing a Will) to include a provision
in the Will for independent administration of the estate upon his or her
death. The language for this provision is found at Section 145 of the **Texas
Probate 
Code*<http://tlo2.tlc.state.tx.us/statutes/docs/PB/content/htm/pb.000.00.vi.00.htm#145.00>
*. This code section also tells how to ask for an independent administration
in different kinds of cases.

The person who died and whose estate is being probated may have written a
Will or may have died without a Will. If there is a Will, it usually must be
produced in a Texas probate court within four years of the death along with
a certified copy of the death certificate. If there is no Will, then the
death certificate will be produced.

The Administrator who has been appointed by the probate court will produce a
list of all assets in the estate, with their value at the time of death, and
a list of all money owed to the estate. If the estate qualifies for
independent administration, the judge will not be involved further. If the
estate requires a dependent administration, then every step of the
distribution process has to be approved by the probate judge

If estate taxes are due, a final tax return must be filed and the taxes paid
before the estate can be distributed. Over 90% of all estates are exempt
from federal estate taxes. Under current federal tax law, estates with a
value of less than $2 million are exempt from estate taxes (meaning estate
taxes are not owed). In 2009 the exempt amount will increase to $3.5
million; the estate tax will be repealed in 2010 and then be reinstated in
2011 with an exempt amount of $1 million. You should be aware that Congress
can and does frequently change the tax laws. If you have a large estate,
it’s a good idea to check with an experienced estate planning or probate
attorney regularly to make sure your estate planning is up to date. If no
taxes are due on an estate, probate can often be completed in 3–6 months. If
taxes must be filed, it can take longer before the tax return is approved.

When all the debts and taxes have been paid the assets left in the probate
estate will be distributed under the provisions of the Will. A person who
dies without a Will is said to die intestate. In this situation the property
will be distributed according to provisions of Texas law. Texas law requires
estates to be distributed to the closest family members, if there are any.
If a person is married or has children, the assets will be distributed to
the spouse and children. If unmarried and without children, the assets will
be distributed to other close relatives like parents and siblings.

The main disadvantage of dying intestate is that the deceased doesn’t get to
decide who will receive his or her property. If the property is intended for
close family members, that might not be a big problem. Unfortunately, there
is another problem as well; intestate estates almost always end up being
probated through a dependent administration, and much of the assets of the
estate that could have gone to family members will be used to pay for
probate costs. It is possible to avoid a dependent administration in an
intestate estate, but you will likely need the help of a **Texas probate
attorney* <http://attorneypages.com/539TX/index.htm>*. Many intestate
estates still end up in dependent administration.

There are a few Texas laws that allow probate estates to be distributed with
little probate administration. For example, there are special rules for
qualifying small estates that can exclude them from full administration.
There are also provisions for determining who is entitled to receive
property from the estate, without full probate administration. In some
cases, a Will can be recognized as a document that passes title to assets
without administration. Consult a **Texas estate planning
lawyer*<http://attorneypages.com/536TX/index.htm>
* if one of these might apply to your case.

Though it takes several months to probate an estate, Beneficiaries don’t
have to be left without funds while an estate is being probated. Certain
assets are not distributed during probate, but are transferred in some other
way. These assets are called the non-probate estate. These can include
insurance policies, IRAs, KEOGHs, pensions, profit sharing, and 401(k)
plans. These assets are transferred directly from the company or bank
holding them to the beneficiary who is named in the policy or account
documents.

Non-probate estates also include property owned in joint tenancy with a
right of survivorship. These pass directly to the survivor if the documents
are prepared properly. Assets in Trusts, such as a Living Trust, are not
part of the probate estate, but are distributed according to the provisions
of the Trust document. Money may be transferred at death with Transfer on
death (TOD) or Payable on Death (POD) bank accounts. None of these assets
are part of the probate estate and should not be listed as assets in a Texas
probate court.

For more information about Estate Planning, see **Texas Wills, Living Wills
& Living Trusts: An Estate Planning
Guide*<http://law.freeadvice.com/estate_planning/probate/texas-wills.htm>
*. To learn more about Probate Administration, see **Texas Probate
Administration*<http://law.freeadvice.com/estate_planning/probate/texas-probate-administration.htm>
*. *
*
Q&A from a different website

Question
Thanks for your time.I own a 1/4 interest in a family home that is set up as
a trust.I asked my other 3 siblings last year about selling as I am no
longer interested in upkeep costs,rental headaches etc.. They don't want to
sell at this time. What are my options? Can I force them to sell,or is this
an example of majority rules? I wanted to sell last year when prices were
better.Can I put a lien on it? Would a lawyer be able to help me, or am I at
the other's mercy?
Answer
I'll answer your questions one at a time:
1.  If the property is in a trust, you probably can't sell your portion of
the ownership separately, it depends upon how title is held.  If you really
want to sell your portion, it might be worth it to have the trust reviewed
by an attorney to confirm that.  The question that the attorney would have
to answer for you is if you own a separate share of the property that can be
sold, or do you own an interest in the property that can only be sold as
part of the whole.  Title can be held either way.
2.  Regarding putting a lien on the property, the answer is partially the
same answer as #1.  You may be able to mortgage your separate ownership,
though it is unlikely that a bank would give a loan like that, but if you
own an interest in the whole you will need the other owner's consent to do
the loan.  But I have to ask - if the cost of owning it is a financial
strain, why would you want to take cash out and make the financial strain
worse by adding mortgage payments?
Yes, I do recommend you consult with an attorney.  There may be an argument
that the other trustees shouldn't be placing a financial burden on you by
not selling.
Best of luck,
John

Question
My mother passed away one year ago. We are in the process of selling her
house. If the house sells in 2009 and she passed away in 2008 ,would this be
long term capital gains. The sale of the house will be divided three ways,
as I have two sisters. If I need to reinvest any gains what can I reinvest
these gains in other than property? Thanks
Answer
You need to ask this question of your tax advisor, but here are some things
to consider.
Who owns the house now?
If the house is in the estate and the estate is not yet settled and
distributed, the estate will receive the proceeds of the sale and will need
to pay the taxes.  The proceeds of the sale can't be distributed to heirs
until the taxes are paid.  If you later invest your share of the proceeds,
it makes no difference to the estate, since it can't re-invest to avoid
taxes and it should be closed down as you receive your share of the assets.
I hope this makes sense to you.
You should consult a tax advisor to determine if it is better to distribute
the house to you and your sisters or if is better to sell it and distribute
cash.  Either way, you are going to pay taxes on the value of the property
or cash you receive, thus you really need to talk to a tax advisor as soon
as possible.
Best of luck,
John
*


On Tue, Jun 16, 2009 at 7:58 AM, Michael R. Martin <drsewnsew@xxxxxxxxxxx>wrote:

> *How long does probate take and how much does it cost?*
>
> The time it takes to probate an estate depends on how complicated the
> estate is, including whether or not the deceased left things in order. If
> the deceased left piles of papers to be filed and a paper bag full of
> receipts, it may take time to sort out the initial things, like gathering
> assets, filing tax returns, and paying debts. Other situations can cause
> delays such as a complicated tax situation, many assets to be sold, debt
> disputes, lawsuits against the estate, or difficulty finding the people who
> will inherit the estate under a Will or under state law (Beneficiaries). A
> lawsuit involving a challenge to a Will may cause long delays.
>
> The time Probate will take also depends on the procedures your state
> requires. Every state has it’s own laws on Probate, with specified
> procedures and documents that must be filed. Many states have summary
> procedures for simple or small estates, and these summary procedures are
> usually quite a bit faster than the regular Probate procedures (and
> consequently less expensive).
>
> Considering all of these factors, probate can take anywhere from 3–6 months
> to several years. In California, for example, the average estate takes 7–9
> months to get through Probate, if all goes well, but if there is something
> like a Will contest or some other lawsuit, all bets are off. Some matters
> have taken decades to resolve.
>
> The cost of probate may be set by state law or by practice and custom in
> your community, so it will differ from place to place.
>
> When all the costs are added up—and the costs may include appraisal costs,
> Personal Representative fees, court costs, costs for a type of insurance
> policy known as a Surety Bond, plus legal and accounting fees—probate can
> easily cost from 3–7% of the total estate value, and more. Some of these
> costs are set by law, and there’s nothing you can do about them, but you may
> be able to negotiate a lower fee for services like accounting, legal advice,
> real estate sales, and so on. California, for example, is one of a few
> states that set statutory attorney’s fees based on a percentage of the gross
> estate, even though the net estate (after paying mortgages, debts, and so
> on) may be considerably smaller and a fee based on a gross estate may be
> unfair. These fees are only the maximum fees that can be charged, however.
> Nothing would stop the Personal Representative (Administrator, Executor) of
> an estate in California from contracting with an attorney for services based
> on an hourly rate instead of the statutory fee.
>
> If there is a Will contest or other litigation involving an estate, there
> is no way to predict how much of the estate assets will be used up. Disputes
> have been known to consume all or most of an estate’s assets, which is why
> it’s in everyone’s interest to resolve difficulties as quickly and amicably
> as possible.
>
> Michael R. Martin
>
>
>
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