Phone: (832) 408-0505

Gratia Schoemakers

Gratia P. Schoemakers, Esq.

Difference Between Letters Testamentary and Letters of Administration

By

Letters testamentary and letters of administration are both legal documents that grant authority to manage the affairs of a deceased person. However, there are key differences between the two.

Letters Testamentary:

Probate Law

Letters testamentary are issued by a probate court to the executor named in a valid will. They give the executor the legal authority to manage the affairs of the deceased person’s estate, including collecting assets, paying debts, and distributing property to beneficiaries according to the terms of the will. The executor is responsible for ensuring that the estate is managed properly and that the beneficiaries receive their rightful inheritance.

Letters of Administration:

Letters of administration are issued by a probate court when a person dies without a valid will, or if the will does not name an executor. In this case, the court will appoint an administrator to manage the estate. The administrator is usually a close family member, but if there is no one suitable or available, the court may appoint a neutral third party, such as an attorney, to act as the administrator.

The duties of the administrator are similar to those of an executor, but there are some key differences. For example, when there is no will to guide the distribution of assets, the administrator must then follow the intestacy laws of the state where the deceased person lived. These laws dictate how assets are to be distributed among surviving family members. The administrator is also responsible for identifying and notifying potential heirs and creditors, and for resolving any disputes that may arise during the probate process.

In conclusion, letters testamentary are issued when there is a valid will and name an executor to manage the estate, while letters of administration are issued when there is no will or no executor named in the will. The duties of the executor and administrator are similar, but the administrator must follow state intestacy laws in absence of a will and may have additional responsibilities, such as identifying and notifying potential heirs. If you are unsure about which type of letter you may need or have questions about the probate process, it is recommended to consult with an experienced probate attorney for guidance.

We have helped hundreds of people go through probate, with and without a will; we can help you too! Call our office at 832.408.0505 and book your Legal Strategy Session today! Our office is located at 1100 East NASA Pkwy, Ste. 420J, Houston, TX 77058.

What Happens If You Don’t Probate A Will?

By

Probate is the legal process of administering the estate of a deceased person, which includes validating the will, identifying assets, paying debts and taxes owed, and distributing the remaining assets to beneficiaries. While probate can be a lengthy and complicated process, it is essential for ensuring that the deceased person’s wishes are carried out and that assets are distributed properly. So, what happens if you don’t probate a will?

Probate a will
  1. The Will May Be Invalid: If a will is not probated within 4 years of Decedent’s death, it may be considered invalid. This means that the deceased person’s wishes may not be carried out as they intended, and assets may be distributed according to state intestacy laws instead of the deceased person’s wishes.
  2. The Estate May Be Tied Up in Court: If a will is not probated, the estate may be tied up in court for an extended period of time. This can cause delays in distributing assets to beneficiaries and can result in unnecessary legal fees.
  3. Beneficiaries May Miss Out on Their Inheritance: If a will is not probated, beneficiaries may miss out on their inheritance. This is because assets cannot be distributed until the court validates the will and appoints an executor to manage the estate.
  4. Legal Issues Can Arise: Without probate, legal issues can arise. For example, creditors may not be paid, and disputes may arise among family members over the distribution of assets.
  5. Assets May Be Lost: If a will is not probated, assets may be lost. This can happen if the deceased person’s bank accounts, investments, or property are not properly managed or transferred to the intended beneficiaries.

In conclusion, failing to probate a will can have serious consequences. The deceased person’s wishes may not be carried out, beneficiaries may miss out on their inheritance, legal issues can arise, and assets may be lost. If you are unsure about the probate process or have questions about how to probate a will, it is recommended to consult with an experienced probate attorney for guidance. A probate attorney can help you navigate the legal process and ensure that the estate is distributed according to the deceased person’s wishes.

We have helped hundreds of people go through probate; we can help you too! Call our office at 832.408.0505 and book your Legal Strategy Session today! Our office is located at 1100 East NASA Parkway, Ste. 420J, Houston, TX 77058.

What Happens To Your House If You Die Without A Will In Texas?

By

When a person dies without a will in Texas, their estate will be distributed according to the state’s intestacy laws. These laws dictate who will inherit the deceased person’s property and assets, and in what order of priority.

your house and no will

First, one might think that any property owned jointly with a right of survivorship, such as a jointly owned home, will automatically pass to the surviving joint owner. However, in Texas this is not true. Home ownership does not automatically pass to the next person, unless there was already a Transfer on Death Deed in Place (TODD).

This means that being joint owner with your spouse, only indicates that both of you own one half of the property, the deceased spouse’s share does not automatically belong to the surviving spouse under intestacy laws. In fact, depending on your family make up, it could cause the surviving spouse to become a co-owner with their step-children.

Unlike a house, assets with a named beneficiary, such as life insurance policies, retirement accounts, or payable-on-death bank accounts, will pass directly to the designated beneficiary. These are also assets that pass outside of probate.

The house, however, will have to be distributed like all other remaining assets based on the deceased person’s family structure.

If the deceased person was married with no children, all assets may not go to the surviving spouse, because Texas intestacy laws, do leave assets to a decedent’s parents or siblings in case of no children.

If the deceased person was married with children, the surviving spouse will receive their share of the community property (property acquired during the marriage) and 1/3rd share of the Community property and one-third of separate property in the form of a life estate (property owned before the marriage or acquired by gift or inheritance). The remaining two-thirds of separate and community property will go to the children or their descendants.

If the deceased person was not married but had children, all assets will go to the children or their descendants. If there are no surviving children or descendants, then the assets will go to the deceased person’s parents, and if they are also deceased, then to the deceased person’s siblings or their descendants. If there are no surviving siblings or descendants, the assets will be distributed to the deceased person’s grandparents, and so on down the line of inheritance.

If the deceased person has no surviving relatives, then the assets will pass to the state of Texas.

It’s important to note that the distribution of assets according to the intestacy laws may not align with the deceased person’s wishes. For example, if the deceased person was unmarried but had a long-term partner, that partner would not inherit anything under the intestacy laws. Additionally, if the deceased person had minor children, the court will appoint a guardian for them, which may not be the person the deceased person would have chosen.

Having a will is crucial to ensuring that your assets are distributed according to your wishes and that your loved ones are taken care of after your death. If you do not have a will, it’s important to consult with an experienced estate planning attorney to understand your options and

5 Reasons To Create A Will

By

A will is a legal document allowing individuals to dictate how their assets will be distributed after their death. While many people believe that a will is only necessary for the wealthy or those with complex estates, the truth is that everyone should have a will in place. In this blog post, we will discuss the importance of having a will and why it is essential for everyone, regardless of their financial situation.

1. Control over distribution of assets

    Create a will

    One of the most significant advantages of having a will is that it allows you to have control over the distribution of your assets. Without a will, your estate will be distributed according to the laws of intestacy, which may not align with your wishes. With a will, you can specify who will receive your property, how it will be divided, and when it will be distributed.

    2. Avoiding family disputes

    In the absence of a will, family members may disagree about how your assets should be distributed. This can lead to lengthy and expensive legal battles, which can strain relationships and cause irreparable damage. Having a will in place can help avoid these disputes by providing clear instructions on how your assets should be divided.

    3. Naming a guardian for children

    If you have minor children, a will is especially important. Without a will, the court will decide who will become the legal guardian of your children if both parents die. By creating a will, you can name a guardian for your children and ensure that they will be cared for by someone you trust.

    4. Minimizing estate taxes

    Another advantage of having a will is that it can help minimize estate taxes. By using specific strategies in your will, such as creating a trust, you can reduce the tax burden on your estate and ensure that more of your assets are passed on to your heirs.

    5. Peace of mind

    Finally, having a will can provide peace of mind. There is value in knowing that your assets will be distributed according to your wishes and that your loved ones will be taken care of. People who have created their will have indicated that it gave them a sense of security and reduced stress.

    In conclusion, a will is an essential document that everyone should have in place. It allows you to control the distribution of your assets, avoid family disputes, name a guardian for children, minimize estate taxes, and provides peace of mind. If you do not have a will, it is important to consult with an experienced estate planning attorney to ensure that your wishes are carried out after your death.

    Are Any of These 11 Mistakes Lurking in Your Estate Plan?

    By Leave a Comment

    1) Lack of Healthcare and Disability Planning. The majority of deaths occur in hospitals or other institutions. Patients may be incapacitated to the point where they can no longer communicate their healthcare wishes. Advance Directives and a Healthcare Power of Attorney can identify healthcare proxy decision-makers, specify wishes for end-of-life care, and provide a formal plan to control financial and property matters.

    2) No will or estate plan. Without proper planning, your estate may be tied up in probate court for months or years after your death, at a great emotional and financial cost to your family.

    3) Lack of attention to digital assets. Without a plan for digital assets and social media, you may lose critical documents, photos, memories, and family records.

    4) Lack of attention to your children’s possible future divorces or lawsuits. It’s not fun to think about, but if your children divorce or are sued at some point in the future, their inheritance may be decimated and end up in the hands of those you never intended. A trust can help protect your legacy and your children’s inheritance.

    5) Lack of attention to the conscious transfer of family values. Comprehensive estate planning can include family meetings, a family mission statement, and custom planning for children.

    6) IRA funds wasted. Retirement account beneficiaries often receive these account funds in a lump sum, creating the potential for a huge and unexpected tax bill. A standalone retirement trust (sometimes called an IRA trust) can protect these funds while still providing for your beneficiaries.

    7) Chaotic record-keeping. Good planning is essential to make sure your heirs do not spend months or years trying to make sense of what you left behind. A comprehensive estate plan provides you with a framework for maintaining your vital legal and financial records.

    8) Surviving spouse creditors and predators. If your surviving spouse remarries and then divorces, your estate could end up in the hands of people you never intended. Likewise, if your surviving spouse is victimized by financial predators – something increasingly common as the population ages – your family may discover too late that your legacy is gone. A trust can ensure family money stays in and benefits the family.

    9) Family feuds over sentimental items. This problem can be avoided with a Personal Property Memorandum, which can account for tangible items like artwork, family heirlooms, and jewelry. In addition to the financial assets, your plan should include careful consideration of important family items.

    10) HIPAA privacy lockout. If incapacity leaves you unable to communicate, family members—even your spouse—may not be able to access your medical records because of HIPAA privacy rules. Executing a HIPAA authorization ensures access to medical information.

    11) Outdated Estate Plan. You may have a will and estate plan already. Does it reflect your current circumstances, goals, and needs? A comprehensive review by an estate planner ensures that your estate plan reflects your current situation, desires, and needs.

    What To Do After a Loved One Dies – PART 2

    By Leave a Comment

    Consequences of Mishandling an Estate: Examples from Real Life

    Example #1: Failing to disclose assets to the IRS. Lacy Doyle, a prominent art consultant in New York City, inherited a large estate when her father passed away in 2003. He allegedly left her $4 million, but she only disclosed fewer than $1 million in assets when she filed the court documents for the estate. Per the New York Daily News: “She opened an ‘undeclared Swiss bank account for the purpose of depositing the secret inheritance from her father’ in 2006 — using a fake foreign foundation name to conceal her identity… [she also] didn’t report her interest in the hidden accounts — nor the income they generated — from 2004 to 2009.” As a result of these alleged shenanigans and Doyle’s failure to report the accounts to the IRS, she was arrested, and she now faces a six-year prison sentence.

    Example #2: Misusing power of attorney. Another famous case of an improperly handled estate involved the son of famous New York socialite, Brooke Astor. Her son, Anthony Marshall, was convicted of misusing his power of attorney and other crimes. Per a fascinating Washington Post obituary: “In 2009, Mr. Marshall was convicted of grand larceny and other charges related to the attempted looting of his mother’s assets while she suffered from Alzheimer’s disease. He received a sentence of one to three years in prison but, afflicted by congestive heart failure and Parkinson’s disease, was medically paroled in August 2013 after serving eight weeks.”

    Some Key Takeaways

    1. Seek professional counsel to avoid even the appearance of impropriety when handling an estate.
    2. Bear in mind that errors of omission and accident can be costly – even if your intent was good. An executor who makes distributions from an estate too soon can get into serious trouble, for instance. An executor’s personal assets can wind up in jeopardy if his or her actions cause an estate to become insolvent.
    3. Even if you’re well organized and knowledgeable about probate and estate law, it’s surprisingly hard to anticipate what can go wrong. There are many ways to end up in hot water when you’re handling the estate or trust of a loved one.

    We’re here to help you steer clear of the obstacles and free you to focus on yourself and your family during this difficult time. Contact us for assistance. We can help you manage estate and trust related concerns as well as point you towards other useful resources.