Geoff R. Casavant, P.C. -- Frequently Asked Probate Questions

Estate Planning:
What should I bring with me to meet my attorney?
How much will my estate planning cost?

Wills:
Where is the best place to keep my will?
How can I find out if I am named as a beneficiary in someone else's will?

Trusts:
Will a living trust help me avoid probate?

Probate:
How long after someone dies do I have to file the will for probate?
How long should probate take?
The executor is taking a long time to finish probate -- what can I do?
Will I have to worry about estate taxes?

How much will my estate planning cost? (Submitted by Joan, Stockton, CA)

Neither Texas law nor the rules of the State Bar of Texas establish any firm guidelines regarding legal fees. The State Bar mandates that fees charged by attorneys must be reasonable. Whether a fee is reasonable depends on all the facts and circumstances of the representation, including the complexity and novelty of the issues, the experience of the attorney, the likelihood that the attorney will have to decline other work in order to engage in the representation, and so on.

To a large extent, the fee will be what you negotiate with your attorney, so it pays to shop around. Some attorneys will conduct estate planning and draft relevant documents for a flat fee, while others will represent on an hourly basis. Still others may work on an hourly basis, with a guaranteed minimum or maximum fee.

For comparison purposes, I ordinarily assess fees on an hourly basis. My current standard billing rate is $150 per hour, although I have charged more or less (or waived the fee altogether) in appropriate circumstances. It has been my experience that a single person can get a standard estate planning package -- consisting of an estate planning review, simple will, durable powers of attorney for health care and financial matters, directive to physicians, and contingent guardian appointment -- for between $350 and $400, although this fee may be more depending on the particular circumstances of the testator.

Where is the best place to keep my will?

Any place you store a will is fine, as long as it meets two important criteria. First, your will should be protected as much as possible from accidental loss, damage or destruction. Second, your will should be kept in a place that is known to and easily accessible by your family after your death. For this reason, there is a definite difference of opinion among attorneys whether a safety-deposit box is acceptable. I personally believe a safety-deposit box is acceptable, as long as another person (preferably the executor) has free access to the box at all times, such as being a co-owner.

Although it may seem odd, one of the best places to keep a will is in a sealed plastic bag in your freezer. It is easily accessible and immune from most damage due to the insulation of the freezer. Keep in mind that the plastic bag must be sealed to prevent moisture from forming on the will.

You may see if your attorney will retain the original of your will for safekeeping. Some attorneys will at no charge or at a nominal fee. I do not recommend this practice, since you may lose track of the attorney over time. I do, however, keep digital copies of clients' wills, and if the originals are ever lost or damaged, I will re-execute the documents at no charge.

Lastly, Texas allows a testator to deposit a will for safekeeping with the clerk of the county in which the testator resides.

How can I find out if I am named as a beneficiary in someone else's will?

If the testator is still alive, the only way to find out if you are named as a beneficiary is to ask to see a copy of the will. Bear in mind, however, that a will may be amended at any time while the testator is alive.

If the testator has died, and the will has been filed for probate, it is a public document and you may order a copy from the county clerk for a nominal fee. If the will has not been filed for probate, your best bet is to ask the person who currently holds it to give you a copy.

Will a living trust help me avoid probate?

Generally, no. At least some probate proceeding is still necessary, if for no other reason than to have a personal representative appointed to deal with creditors and any property that was not transferred into the trust. You should be especially wary of anyone who tries to sell you a living trust package on the grounds that it will help you avoid "the nightmare of probate" or save taxes. Texas is progressive in having a probate process that, with a little planning, can be both quick and inexpensive. Therefore, any trusts you do create should be as a supplement to your will, rather than a replacement.

How long after someone dies do I have to file the will for probate?

Naturally, you should try to file the will for probate as soon after death as possible, after allowing yourself sufficient time for grieving. However, this is not always possible, since a will may be lost or wrongfully retained by someone who doesn't want it filed. Texas law specifies that, ordinarily, a will must be offered for probate within four years of the date of death. However, a will may be offered for probate as a "muniment of title" more than four years after death, if the person offering the will for probate is not responsible for the delay; in such a case, however, an executor may not be appointed.

How long should probate take?

The length of a probate proceeding will depend on numerous factors, including the size and nature of the estate, the provisions of the decedent's will, the number and amount of claims against the estate, whether a will is contested, and so forth. At a minimum, you should expect a standard probate proceeding to last six to nine months from its initial filing; however, it is not unheard of for a probate proceeding to last several years under the right circumstances.

The executor is taking a long time to finish probate -- what can I do?

There is always the temptation to believe that, if an executor or administrator is taking a long time to complete the probate proceeding, he or she must be hiding something. However, this is rarely the case, and most delays can usually be ascribed to more innocent causes.

If you have reason to believe the executor is purposely delaying the proceedings, or is ignoring his duties, and sufficient time has passed (up to two years for an independent executor), you can petition the probate court for an accounting and distribution. The executor must then file an accounting of the estate assets with the court, and show what income has been earned and expenses paid. After a hearing, the court will then determine whether some or all of the estate should be distributed to the heirs and beneficiaries.

Will I have to worry about estate taxes?

Fewer than five percent of the population of the United States will have to worry about estate taxes under the current tax scheme. As of 2003, persons dying with a gross estate of less than one million dollars will not have to pay Federal estate taxes and will not have to file an estate tax return. This cutoff amount is planned to increase over the next seven years. Those with estates valued over this amount will have to file a return, but with sufficient estate planning, may not have to pay any actual tax.

With regard to state inheritance taxes, Texas has what is known as a "pick-up" tax, where the state inheritance tax is equal to the maximum amount allowed as a state tax credit against the Federal estate tax. However, this Federal credit is due to be repealed after December 31, 2004, and it remains to be seen how Texas's inheritance tax will be amended at that time.

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