Probate With A Will – When a Person Dies with a Will in Texas
When a person dies with a will in Texas, – the person named in the will as ‘executor’ is expected to petition the Probate Court to begin the probate process. At initial probate hearing, the judge will seek to validate the submitted will and will make every effort to approve the will’s named executor. If the will is found valid, the named executor or judge-approved alternate executor is approved to gather and safeguard all estate assets, pay all debts & taxes, and then distribute the remaining estate assets as specified by the will.
To probate a Will in Texas, someone must file an application with the appropriate probate court. There are 18 Statutory Probate Courts distributed in 10 counties throughout Texas. Be careful you find the correct court. If you file at the wrong court you must start the entire process over –and– there can be other unintended consequences. A skilled probate attorney can help you determine the appropriate jurisdiction, choose the correct type of probate (of the three possibilities) and make sure your probate court application will be completed correctly for fast processing and quick initial court hearing.
Probate is Started by Filing a Probate Application
For those who pass with a Will, the probate application must contain basic required information including:
- Date of death
- Deceased’s address
- Identities of all known heirs
- A copy of the Will
Following the filing, the county clerk will post the notice at the courthouse informing the public that a new probate application has been filed. Following a required two-week waiting period, you can have your first hearing before a probate judge.
Who Can Start the Probate Process?
We get constant calls from heirs and beneficiaries who have been waiting months or years to ‘hear about’ the distribution of someone’s estate. Out of frustration of ‘nothing happening’ they call a probate attorney looking for answers on how to get their inheritance they’ve been expecting.
For those who die with a will, the filing of a probate application is typically done be the executor named in the Will. Such is the expected outcome by most heirs and beneficiaries.
Unfortunately, sometimes the named executor is quite happy to do nothing. The reasons for not proceeding with the probate process are often self-serving. Fortunately, Texas law allows ANY spouse, heir, creditor, devisee (a person to whom real estate is left by the terms of a will), or any other persons having a property right in, or claim against, the decedent’s estate to file a petition to start probating the estate.
The Initial Probate Hearing
If the probate application is in order, there will be an initial probate hearing scheduled. Many people are understandably uncomfortable appearing in court. Having a probate attorney there will go a long way in diffusing one’s stress and anxiety. For those estates where the decedent passed with a will, at the initial probate hearing a probate judge will determine if the person named as executor in the decedent’s Will is qualified to serve. If not another must be chosen.
Determining the Executor
The person approved at the initial probate hearing as ‘executor’ will be responsible for identifying and gathering all the estate assets, safeguarding those assets, paying debts and valid creditors, and finally be responsible for distributing any remaining assets. Most probate courts require probate executors have an attorney representing them. The reasoning is that probate can be complicated for the uninitiated, and the person named ‘executor’ has a ‘duty’ (above his or her own interests – even if the executor is a beneficiary also) — a legal fiduciary duty — to ALL other beneficiaries and heirs. Even if a particular probate court does not make having an attorney a court requirement, it is always a wise choice to have an attorney assisting the executor available for ongoing consultations along the probate process. The attorney is not paid by the executor personally, the attorney’s minor costs are paid by the estate just like all the other expenses.
Probate Judge Must Validate Will or Deny if Deficient
In addition to reviewing, replacing, and approving the executor, the probate judge is required to ‘sign-off’ on the validity of the Will presented to the court with the probate application. Texas probate law requires valid Wills must meet prescribed requirements. Texas probate judges have the power and duty to deny a Will if it is incomplete or flawed. If the probate judge approves Will’s validity, that Will is admitted into probate and the named executor (or judge-approved replacement executor) will be issued ‘Letters Testamentary’.
Probate Judge Issues Letters Testamentary
Letters Testamentary are letters issued by a probate court stating that the executor has the legal authority to act on behalf of a deceased person’s estate.
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