The Texas probate process can be complicated depending on several factors, the most important of which is whether the deceased person left a valid Will. Most Wills, and particularly any attorney-drafted Will, name an executor and direct that the executor will serve independently and without a bond. If this is the case, then the probate process is relatively straightforward (assuming there is no contest of the Will). On the other hand, if a person dies without a Will, if none of the named executors can serve, or if the Will does not have the correct language naming an independent executor, the process can be more complicated.
However, what most people think of when they think of probate – is an independent administration. In a typical scenario with a Will and an independent executor, the probate process for an independent administration follows these steps.
Find the Will
First, the Will must be located. Hopefully, the deceased left the original of the Will in an obvious place, and it can be located easily. Many people keep their Will in a safe deposit box. If this is the case, someone must have the authority to access the safe deposit box to get the Will out, or the bank will not let anyone open the box. That is why most attorneys advise against leaving a Will in the safe deposit box. There is a court process to access a safe deposit box to look for a Will, but this adds another layer of complexity to the situation.
Hire a Lawyer
Next, it is time to see a lawyer. While some courts will allow a non-lawyer executor to represent themselves in a probate matter, it is against the law for a non-lawyer to represent him or herself as an executor. This is because the executor acts as the representative of the estate and the beneficiaries under the Will. Moreover, a layperson may have trouble completing all the legal filings without the knowledge and experience of a lawyer.
File the Application
Your lawyer will prepare an Application for Probate. This application informs the court of certain facts about the deceased person and the Will. The original Will is filed at the courthouse along with the application. Once filed, the court clerk will issue a notice that the Sheriff must post at the courthouse door. This notice must remain there for ten days before having a hearing before the probate court.
The Probate Hearing
After the waiting period, the court will hold a hearing. Your lawyer schedules this hearing based on the court’s available hearing dates. These hearings are generally held one or two days a week in many courts with several hearings scheduled back-to-back. Your hearing will most likely last about five minutes unless there is something very unusual. At the hearing, the lawyer will ask the witness (usually the executor) a number of routine questions about the deceased person and their Will. At the conclusion of the hearing, the judge will sign an order admitting the Will to probate and authorizing the issuance of “Letters Testamentary.” The Letters Testamentary are the official document reflecting the executor’s right to serve as executor. After the hearing, the witness will sign a written version of his or her testimony and then take an oath to faithfully execute the duties of the executor.
Within 30 days after receiving the Letters Testamentary, the executor must publish a notice to creditors in a local newspaper. Your attorney will handle this for you. The notice allows creditors of the deceased person to know where to file their claims in order to get paid. The notice must be filed whether the deceased had creditors or not. Additionally, if there are any secured creditors, these must be notified by certified mail that an executor has been appointed. The executor must send a certified notice of the probate to any person or charity named as a beneficiary in the Will. The executor must file proof with the court that the executor published the notice.
Within 90 days of qualifying, the executor must file an inventory of the deceased’s property with the court. The inventory lists all the property that is passing under the Will only. So, for instance, life insurance, retirement plans, some joint accounts, and many other properties are designed to pass directly to a named beneficiary and do not need to be listed. Moreover, this inventory does not need to include every spoon the deceased owned. Things like household goods are grouped together, and only major items are listed separately. In some cases, the executor may file an affidavit with the court that states the inventory was prepared and delivered to the beneficiaries instead of filing the inventory with the court.
Claims of Creditors
If any creditors of the deceased file a claim, the executor must evaluate the claim to determine if it is valid. The executor must pay all valid claims out of the property of the estate unless the estate does not have any property that is subject to creditors’ claims. Some of the estate property may be exempt from creditors’ claims. The claims process can be very complicated if there are many debts.
Distributing Property to Beneficiaries
Once the creditors have been paid, the executor distributes the property of the estate to the beneficiaries named in the Will. This may take the form of writing a check, delivering personal property, or giving the beneficiary a deed. In Texas, this is often the end of the probate process. An executor can file with the court to close the estate. However, in Texas, it is quite common just to leave the estate open indefinitely as closing the estate is not required by law.
As you can see, even a “simple” probate has many steps that can be overwhelming. However, things get much more complicated when there are errors in a Will’s execution, where there is no executor named or able to serve, or when there is a contest of a Will. Regardless, at Dawson Parrish Springman we can guide you through the process and take the burden off you. Schedule a consultation to learn how we can help you with this complicated process. We have offices conveniently located in downtown Fort Worth, north Fort Worth/Keller, and Midland. Call us at 817-873-1462 or 432-255-5549 or send a message online and we will respond promptly.