Some topics are so messy that they are simply not addressed in polite company. One such topic is the Black Hole of Probate.
What is the Black Hole of Probate?
The Black Hole describes that touchy period between your death and the probate of your estate. It is a dead zone. No one person has the authority to do anything with your property. For example:
- You die on April 1, leaving a written will that names an executor and distributes your estate to some family members and a friend or two.
- They hire an attorney to probate your will.
- Depending upon the county, it will take anywhere between 3 weeks and 6 months to get to a hearing to approve the will and appoint an executor.
That leaves somewhere between 3 weeks and 6 months of uncertainty. The executor named in your will has no authority to act during that period because the court has not yet appointed him. The beneficiaries in your will have no authority to take possession of your property because the will has not been declared valid by a court. Your heirs at law have no authority to take possession of your property because you left a valid will. Your spouse, if one exists, has the right only to handle property that is already titled in his or her name.
What the Black Hole of Probate Means For Your Estate
Remember that lack of authority is not equal to lack of ownership. Under Texas law, title in the property in your estate vests in the beneficiaries of your will at the moment of your death. If you do not leave a valid will then title vests immediately in your heirs. There is never a gap in title.
However, the law is known for making sweeping statements that do not translate into immediate action. Your beneficiaries may instantly own part of your estate, but that does not mean that they have the right to possession or management. Just ask the banker who refuses to disburse your account directly to a beneficiary named in a will not yet admitted to probate.
Tips for Avoiding the Black Hole of Probate
The Black Hole leaves plenty of time for mischief. Relatives and beneficiaries abhor a vacuum. You can expect that one of them, while in the Black Hole, will try to take possession of your property, unnecessarily rush to pay your bills, and generally make a muck of things. That places your executor in a horrible position because he or she, once appointed, will have the unfortunate task of trying to find the missing assets and undo the harm.
Probate Avoidance Tactics
Take advantage of probate avoidance tactics – the most common are the Transfer on Death Deed, beneficiary or right of survivorship designations, and a survivorship agreement.
Living Trust
Set up a living trust and fund it during your lifetime with your property. Property in a trust does not go through probate unless your trust unwisely pours over into your estate.
Gifts
Gift things during your lifetime.
Tips for Your Beneficiaries and Executor to Avoid the Black Hole
- Promptly hire an attorney to probate the will. That shortens the time of the Black Hole.
- Seek a temporary administration and/or a restraining order. Be aware that most Judges are reluctant to approve these.
- Call the police if someone is looting the house, removing the cars, or walking off with property.
- Take steps to secure the property. This can be risky because of the lack of authority.
- Discuss the Black Hole. It exists.
Probate is Simple With Hammerle Finley Law Firm
Our experienced attorneys can help ensure the probate process goes smoothly. Avoid the Black Hole of Probate and contact the experts at Hammerle Finley Law Firm today.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
