Probate Attorneys

People often wonder, “What is probate?” or “What does a probate lawyer do?” The answer is broader than most people realize. When most people think of the term probate, they associate it with administering someone’s assets after someone’s death. Although probate, at its core, involves property and assets, it is not limited to issues arising in connection with death. In fact, probate courts routinely resolve legal issues that arise before death. For example, probate courts frequently make determinations regarding who should control assets and who should make medical decisions for someone who is incapacitated, but still living.

With respect to assets, there is a significant amount of substantive law which may apply to any given issue, including, but not limited to, the laws found in the Texas Estates Code, the Texas Property Code, and the Texas Family Code. In Texas, the assets a person owns can be initially categorized as either: (1) community property and/or separate property; and (2) probate property and/or non-probate property. At a basic and fundamental level, probate issues — whether arising before or after death — commonly involve:

  • identifying the marital property character of an asset; and
  • identifying which “bucket” an asset is in — for example, whether the asset is owned by individual outright or in a trust or business entity and/or whether the asset is “non-probate” or “probate property.”

Categorizing assets in this way usually involves applying a series of complex rules, which are found not only in statutes, but in the case law interpreting them. Many important consequences stem from how assets are categorized. For example, the initial level of characterizing assets as community property or separate property and/or as probate or non-probate informs, among other things:

  • Who has the right to administer the asset before death;
  • Whether the asset was, in fact, properly administered;
  • Who has the right to dispose of the asset on the owner’s death;
  • How title to the asset passes on the owner’s death (by will or by beneficiary designation);
  • What assets are subject to the control of an executor or administrator during the estate administration; and
  • What assets are available to pay creditor claims.

Resolving these issues, and many others, may arise in the context of a will contest, an estate dispute, a trust dispute, a guardianship dispute, a powers of attorney dispute, or a routine administration.