An estate in Texas is comprised of all of the assets owned by someone at the time of their death—for example—cash, real estate, stocks, bonds, life insurance, retirement accounts, cars, etc.
The probate of someone’s estate refers to the process by which a Court recognizes that person's death and authorizes the administration of that person's estate. The probate process applies both when:
- Someone dies leaving a Will or
- When Someone dies without a Will
The Texas Probate Process requires that:
- All of that person’s property will be gathered
- Their debts paid
- The remaining assets distributed according to either the provisions of his or her Will, or
- If they died without a Will, then the property will be distributed according to Texas law regarding intestacy (dying without a Will).
Initiating the Probate Process....
Initiating the probate process is actually fairly easy. Whether or not the Decedent died with a Will, an application for probate will need to be filed in a Texas Probate Court.
Once the Application has been filed, Texas probate law requires that you must wait approximately 2 weeks before you can have a hearing on the Probate Application for the Court to determine the necessity to open the Administration of the Estate and/or to recognize the Decedent's Will as valid.
During the 2 week waiting period, the County Clerk posts a notice at the courthouse that an application has been filed for probate. This posting serves as notice to anyone who might want to contest the Will or administration that they have a certain number of days to do that. If they fail to file their contest within that period of time, the Court can move forward in opening the administration and/or recognizing the validity of the Will.
Once the waiting period has passed, a hearing will be conducted before the probate Judge. At that time, he will recognize that the Decedent has died, that the Court has jurisdiction of the case, that the person applying to be the Executor is qualified to serve, and that either the Decedent died without a Will or that the Will he left was valid.
As a practical note, the local rules of most of the Courts hearing probate cases in Texas require that a person applying to administer an estate or admit a Will to probate must be represented by an attorney. Because the Executor has important duties to all of the beneficiaries and heirs of the estate, the Courts want to ensure that they are properly advised as to their obligations and duties as the Executor.
The complexities that can be presented in the probate process (especially when someone dies without a Will) can be difficult to properly address. Accordingly, we caution our prospective clients to take care in hiring an experienced Texas probate attorney who can competently advise you through the probate process. The consequences of receiving incomplete or inaccurate advice in this process can be unfortunate.
Steps in the Texas Probate Process....
The Texas Probate Code provides certain steps that must be followed when navigating the probate process. In addition to those requirements, some Courts will impose additional rules that may differ somewhat depending on the Court in which your case is heard.
During the probate process, each of the following will occur:
- The Will filed with the Court and is proved to be either valid or invalid.
- The Court appoints a person to be responsible for administering the Estate.
- A listing of the property belonging to the Decedent’s estate is reported to the Court.
- If the Decedent died without a Will, the Court will make a formal determination as to the identity of the Decedent’s heirs.
- Creditors owed money by the Decedent at the time of death are given the opportunity to file Claims and seek repayment
- The assets remaining after payment of debts and expenses are distributed to either a) the beneficiaries listed in the Will or b) the heirs determined by the Court, if there was no Will.
- If the family members of the Decedent engage in a fight over the assets of the estate, the Court will hear that dispute and resolve whatever issues may exist.
The Notice to Creditors and Inventory of Estate Assets....
Although the various types of probate will be discussed elsewhere in this website, the Texas Probate Code requires that executors and administrators in any probate proceeding complete two requirements. While additional requirements may be imposed as a result of the specific type of probate you employ, every executor or administrator will be required to:
- Publish a Notice to the Creditors and
- File an Inventory of the Estate Assets
The Notice to Creditors is a notice published in a newspaper in the County in which the probate proceeding is pending. This notice simply informs any potential creditors of the Deceased that the probate proceeding has been opened. It also tells them the identity of the Executor and the address of their attorney, and it notifies the creditors that they must file a Claim against the estate if they desire to be repaid for their outstanding debt. The Notice to Creditors is a routine matter that your attorney will prepare and file for you.
The Inventory of the Estate Assets is a detailed listing of all of the assets that were owned by the Decedent as of the date of his or her death. This listing must be provided to the Court within 90 days after the Executor is appointed, and it informs the Court of those assets with which it should be concerned in the probate administration. The Inventory serves essentially as a report of the Executor’s work in identifying and gathering the assets of the estate.
The probate process can be a daunting experience for someone who has never been through it before. An experienced probate attorney can guide you efficiently and effectively through the probate process. Depending on the nature and complexity of the Estate, you may need minimal help in navigating the process, or if the Estate is more complex, you may need more extensive help. In either situation, the attorneys at Ford+Bergner LLP are qualified to assist you with these issues and to provide the appropriate level of assistance dictated by the complexities of each estate.