Laws, in-laws can make wills difficult, expensive to execute

Tony Plohetski (tplohetski@statesman.com; 512-445-3605)
December 10, 2006
Austin American-Statesman (TX)

Most people who write a will in Texas pick a family member or friend to divide their money and property among loved ones when they die. Those executors generally must show up to court only twice: first to file the will, then 90 days later to submit a list of the deceased’s belongings.

Probate judges then send them on their way and typically take no further action on those estates.

But some think Texas laws should add another step: a requirement that would make executors notify people named in a will that they are due money or property.

Sen. Jeff Wentworth, R-San Antonio, who heads the Senate Jurisprudence Committee, said he was surprised to learn Texas probate laws require only that charities and nonprofits be notified. Requiring the same notification for all beneficiaries is common sense, he said.

“That is something that you would just expect,” Wentworth said. “That is something we need to look at and consider this (legislative) session.”

Others say they would be reluctant to add a step in a system known for keeping the courts out of a personal matters.

“If people are going to be untrustworthy, it doesn’t matter how many hurdles you raise,” said Tarrant County Probate Judge Steve M. King.

Heirs get more protection from the state if a person has died without leaving a will or choosing an executor. In those cases, a judge usually appoints a lawyer to handle the estate.

Court-appointed administrators typically must post a bond with an insurance company or bank, which agrees to reimburse an estate if the executor steals from or mismanages it. They must also get permission from the court before selling the deceased’s property or giving loved ones their inheritances.

That extra protection comes with a price: Experts said attorney’s fees and court costs in those cases can chew through up to 10 percent of an estate.

“Most families, looking at it from both directions, say, ‘I would rather trust my family (to carry out the will)’ and take that risk than have the absolute certainty that the legal fees are going to be five, six times what they normally would be,” said Austin probate attorney Glenn Karisch.

Travis County Probate Judge Guy Herman said he thinks changing state laws to require written notice to beneficiaries would reduce estate theft and mismanagement.

“At least there would be more monitoring going on,” Herman said. “The people who would have an interest in it would start watching more.”

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Facing mortality: What happens when you die?

Although most people will confront the loss of a loved one, few people know how the process of probating a will and settling an estate in Texas works. And it varies based on whether the person has a will and has named an executor.

With will, executor

Executor retrieves will

Executor files will with probate court clerk

Executor files list of deceased’s belongings in 90 days

Executor disperses assets according to will

With will, no executor*

Judge selects administrator

Judge gets administrator to post bond

Administrator must ask judge for permission to sell/distribute any property

With no will, no executor* With no will, no executor*

Judge decides who heirs are Judge decides who heirs are

Heirs can’t agree on administrator Heirs agree on administrator

Judge names administrator Administrator distributes assets

Administrator posts bond

Administrator distributes assets

* What generally happens. Judges can deviate if they choose.

Sources: Texas probate judges, lawyers

Tony Plohetski, G.W. Babb AMERICAN-STATESMAN

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