Welcome to FOCUS ON, The Law Office of Angela Odensky’s quarterly newsletter designed to provide critical information you need to know to plan for your future for yourself and those you love most.
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This edition explores the many facets of probate law including what a probate attorney does, recent legislation, how to probate a will, how to avoid the probate process, and alternatives to probate.
What is Probate?
Probate is the process by which property is transferred after the owner’s death. It is the general administering of a deceased person's will or the estate of a deceased person without a will. When there is a will, the probate process is simply one where a will is reviewed to determine whether it’s valid and authentic. When there is not a will, the probate process gives directions for how a person’s property should be distributed based on state law. The probate process calls for the gathering of all assets, paying debts of the estate, and distributing any remaining assets in accordance with an estate plan and the law.
For assets that do not transfer by other legal means, such as a beneficiary designation or right of survivorship, assets such as homes, cars, bank accounts, etc. remain in the deceased's name and can’t be sold or accessed because there is no one who has the right to manage the asset.
 What is a Probate Attorney?
A probate attorney is a state-licensed attorney who works with the executors of an estate to settle the affairs of the decedent. A probate attorney can assist the executor with:
Determining inheritance, estate, and income taxes that may be due
Identifying estate assets
Collecting life insurance policy proceeds
Paying debts and final bills
Preparing/filing court documents
Retitling of assets
Property appraisals for real property
As an experienced probate attorney Angela understands how difficult it can be to navigate the legal processes and settle the estate of a loved one. She is experienced in probating wills and easing the process of settling an estate as well as advising clients on the best ways to avoid costly probate in the first place.
Probate Alternatives?
Remember, property doesn’t pass automatically to relatives, heirs, or beneficiaries upon death. There must be a mechanism to identify the rightful beneficiaries, such as beneficiary designations or rights of survivorship. For instance, if you and your spouse own your home in Texas, when one spouse dies half of the home goes to the surviving spouse and the other half goes to the estate of the deceased spouse. Probate avoidance is something that is planned for upfront, prior to death. Consulting a probate attorney to create a plan for you will avoid probate, save money, and ease the burden on your beneficiaries.
Probate Avoidance
In Texas, there are several things you can do to avoid having your estate go through probate, including:
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A Revocable Living Trust - if you have a trust drafted and retitle your assets in the name of that trust, then the assets will be controlled by your Trustee when you die and will be distributed as you wish.
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Transfer on Death Deed and Beneficiary Designation for Motor Vehicle - a home can be transferred outside of probate by executing a Transfer on Death Deed, which acts like a beneficiary designation for a home. The Texas Department of Motor Vehicles offers a Beneficiary Designation for Motor Vehicle (Form VTR-121) that will transfer your vehicle outside of probate.
DON'T BE A VICTIM
Financial Abuse of Elderly: Texas House Bill 1156
The Texas House just passed HB 1156 which makes financial abuse of the elderly a crime. The law outlines what is considered financial abuse or exploitation of this vulnerable population. Financial exploitation may involve coercion, manipulation, threats, intimidation, misrepresentation, or exerting undue influence by a party who has a relationship of confidence or trust with the victim. The new law goes into effect September 1, 2021.
Creditors
An executor is responsible for settling the debts of an estate, therefore family members should never pay any bills without discussing each one with the executor and a probate attorney. Executors have a fiduciary responsibility to verify bills are valid and to determine whether a bill should be paid or has already been paid or reimbursed by insurance. If they make a mistake and pay a bill erroneously or pay a bill twice, the executor must reimburse the estate for the error. Things to remember regarding creditors:
Never pay any bills without consulting an attorney
Let the executor handle the fiduciary responsibilities of bills
Make certain that a bill has not already been paid or covered by insurance
Fake Bills
The pandemic has done nothing to slow down scams targeting the estates of deceased persons and their families. It is not uncommon for scammers to send a modest bill (usually under $500) to the estate of a deceased person as the tendency is to pay bills and finalize the estate’s financial obligations. Always verify the legitimacy of charges before writing that check.
Funeral Homes
By law, a reputable funeral home fully discloses all costs associated with a funeral and does not inflate costs excessively. Unethical funeral directors may significantly overcharge for items or entice you into buying packages with extra features you don’t want or need such as insisting upon purchase of a casket even if a loved one is being cremated or upselling a pricy casket they claim will preserve the body longer, which it won’t.
Prepaid funerals, while a great choice to lessen stress upon your family have their own sets of problems. Regulations vary from state to state, but it is wise to be aware of cancellation policies and if your state protects you if the funeral home goes out of business or you move out of the state where the plan was purchased.Â
Online resources can help guide you in the pre-planning or arrangement of funeral services:
The Federal Trade Commission has online consumer guides to funeral costs and planning your own funeral:
The Funeral Consumers Alliance, an association of nonprofit funeral-planning organizations, offers an online guide to understanding funeral home price lists: https://funerals.org/?consumers=how-to-read-a-funeral-home-price-list
If you suspect you or someone you know is a victim of fraud, you may contact one of these groups for assistance:
Consumer Financial Protection Bureau: 855.411.2372
FTC: 877.382.4357
AARP Fraud Watch Network Helpline: 877.908.3360
Angela Odensky explains Probate in easy-to-understand terms in a brief video.
Watch HERE
Additional Resources
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The Law Office of Angela Odensky has developed an extensive informational reference library to help you find answers regarding Probate, Elder Law, Estate Planning, Business Succession Planning, and Guardianship.
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Please check out our resources on our website or contact Angela Odensky at info@odenskylaw.com or 713.344.0730. She is here to help you navigate this confusing and complex world.
Visit our website: https://www.odenskylaw.com/