First Steps after a death

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The death of a loved one presents those left behind with difficult choices seldom faced, including decisions about disposition of the body, religious and remembrance gatherings, and the like.  If the decedent managed a business or was head of a household, there are financial considerations on how to continue business operations or how to maintain family income. Then come questions regarding the estate.  Is there a will, what has to be done to protect the estate assets, how will bills be paid? 

Unless there are specific immediate needs to be addressed, there is no need to start a probate as a priority item.  The funeral process, religious services, remembrances, and emotional healing can be handled first.  No need to call a lawyer right away.  That is not to say to wait 3 months or longer to start a probate. Estate assets do need to be gathered and secured, bills need to be paid, and rightful heirs should have the estate distributed as required by law. But unless an emergency application is required, waiting two to four weeks to start a probate process is not a problem.  

What are emergencies?  The following are a few examples but in no means a comprehensive list:

• a business needs to be managed and no other person has access to bank accounts;
• there is the likelihood estate assets will be stolen or lost if not collected and protected;
• bills urgently need to be paid and no person has access to accounts;
• minor children need protection (this would also involve guardianship actions). 

Normally the funeral home or mortuary takes care of how the body is handled, whether a burial or cremation, and also arranges whatever funeral arrangements are desired.  If the decedent left written instructions, either in a will, burial contract or other document, then those instructions will almost always be followed.  If no instructions are left, Texas law leaves the decision, in the following order, to (i) a surviving spouse, (ii) children, (iii) siblings, (iv) a personal representative appointed by the court, and so on.  An attorney usually does not get involved unless there is a question of who has authority to make decisions concerning the body, or there is a disagreement among authorized persons.

Once you are ready to talk to an attorney, call us and we can explain the probate process. Texas law provides for numerous procedures for different situations. Sometimes several procedures can be used for a specific situation, but one may be better due to cost or other considerations. We will always provide an initial free consultation, and in that consultation will describe what we believe is the best method going forward, the estimated time period to resolution, and an estimation of costs and fees.  With respect to the consultation, we prefer an initial phone call to collect some basic information, and then a meeting that acts as the actual initial free consultation. 

With respect to Texas probate procedures, the following are the most common scenarios: 

• independent administration with will (the will is probated with minimal court supervision); 
• dependent administration with will (the will is probated, but court approval is required for most actions of the executor); 
• determination of heirship and administration without a will (intestate actions where there is no will); 
• probate of will as a muniment of title - allows for transfer of estate assets without need of an estate administration (requires a will, and generally no debts are allowed other than debts secured by real estate);
• affidavit of heirship to clear title for real estate - normally used if there is no will, or the estate was not probated in a timely fashion, and no other estate administration is required; and 
• small estate affidavit (only available if there is no will, the estate value is less than $75,000 excluding a homestead, and any real property is the homestead of decedent and the person who inherits the homestead). 

We hope this reading material is of some help to you.  Other pages on this website offer additional information on Texas wills, as well as FAQs regarding specific TX probate questions. Feel free to call the Probate Law Office with any questions you may have. If desired, we can then schedule an in-person or online meeting for a more in-depth discussion, and if agreed on, proceed with any required probate process. 

  
About the attorney:  D. Eduard Schott (TX State Bar #24049355), has practiced law since 1984 (in TX since 2005). His practice is limited to probate law and administration.  Office Tel:  (830) 328-3412;   611 Main Street, Suite #4, PO Box 3094, Bandera, TX 78003.