Probate is the legal process that occurs when someone dies (“Decedent”). It is the process of proving up a Last Will & Testament (if one exists), or if the person passed without a Will, doing an Heirship Proceeding whereby the Court determines who the Decedent’s Heirs are. It is the legal process wherein the estate of a decedent is administered – assets are determined and distributed and liabilities are dealt with. If there is a valid will, the Estate is administered as per the Decedent’s wishes. If there isn’t a valid will, then the Estate is Administered as per the law contained within the Texas Estates Code. The probate process can be rather straightforward if the family members get along, or it can be overwhelming, and very expensive if someone challenges the validity of the Will or for some other reason there is family turmoil and a contested probate proceeding occurs. And just like any legal process, the more the family fights, the more the attorneys win — in the way of VERY high legal fees.
When a person dies, his or her estate must go through probate, which is a process overseen by a probate court. If the decedent leaves a will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect. If the decedent dies intestate (without leaving a will) the court appoints an Administrator to distribute the decedent’s property according to the laws of Descent and Distribution. These laws direct the distribution of assets based on hereditary succession.
In general, the probate process involves collecting the decedent’s assets, liquidating liabilities, paying necessary taxes, and distributing property to heirs. Probate procedures are governed by state law, so every state is different.
Initiating the probate process in Texas is fairly easy. Whether the person died with or without a Will, some form of an application will need to be filed in a Texas Probate Court. Some Counties have a Statutory Probate Court, and in other (usually smaller) counties, the probate process is handled by the County Courts at Law.
Once the Application has been filed, Texas probate law requires that citation to be published and you must wait approximately 2 weeks before you can have a hearing on the Probate Application. The hearing is when the Court will determine the necessity to open the Administration of the Estate and/or to recognize the Decedent’s Will as valid.
During this 2 week waiting period, the County Clerk posts a notice at the courthouse or by publication in a local newspaper. The Notice tells everyone that an application has been filed for probate. This posting serves as notice to anyone who might want to contest the Will or administration. If someone chooses to contest the proceedings, then 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, the death needs to be “proven” up so that the Judge can enter an order stating 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 is valid.
It is important to note that the local rules of most of the Courts hearing probate cases in Texas require that a person applying to be an Executor/Administrator an estate, or admit a Will to probate, MUST be represented by an attorney. This is because the Executor/Administrator has very important duties and responsibilities to all of the beneficiaries and heirs of the estate. Because of this, the Courts want to ensure that this person is properly advised as to their obligations and duties as the Executor/Administrator.
Because of the complexities that arise during the probate process, it is advised that you seek the counsel of an experienced Texas Probate attorney whose law practice is focused in this area. The consequences of hiring an inexperienced attorney can be worse than trying to do it yourself. Like I was once told – if you think it’s expensive hiring an expert, try hiring an amateur.
The Texas Estates Code is the guidebook when it comes to probating an estate. It provides the steps that must be followed when going through the probate process. In addition, some Courts will impose additional rules (Local Rules) that may differ somewhat depending on the Court in which your case is heard. This is another reason why you want to hire an experienced Texas Probate attorney to assist you.
Here are some of the things that happen once an application is filed and a hearing is held:
- If a Will exists, the Original is filed with the Application so that the Court can determine its Validity
- At the hearing, the Court appoints a person to be responsible for administering the Estate (Executor or Administrator)
- At some point after the hearing, a listing of all the real and personal property of the Decedent is put into an “Inventory” which is filed and approved by 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 – these are the family members who have a legal entitlement to the Decedent’s estate.
- If the Decedent owed money to creditors, they are given notice and have the opportunity to file Claims and seek repayment
- The assets that remain after payment of funeral expenses, legal fees, costs of administration, debts and other expenses are then distributed to:
- the beneficiaries listed in the Will or
- the heirs determined by the Court, if no Will exists or if the court determines that the Will is invalid
- If the family members of the Decedent decide they would rather fight over the estate rather than get along, then the Court will hear that dispute and resolve whatever issues may exist — and the attorneys representing the family members make a lot of money!
While additional requirements may be imposed due to the specific type of probate that is filed, Texas Estates Code requires that Executors and Administrators complete two requirements in every type of probate case:
- Publish a Notice to the Creditors and
- File an Inventory of the Estate Assets
The Notice to Creditors is in a newspaper in the County in which the probate proceeding is pending. This notice simply informs any potential creditors of the following:
- that the probate proceeding has been opened
- who the Executor/Administrator is
- the address of the Executor/Administrator’s attorney
- now is the time to file a claim if they want any chance of being paid
The Inventory of the Estate Assets is a detailed listing of all “probate assets” that the Decedent owned as of the date of 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 that are considered “probate assets.” An experienced Texas Probate attorney will be able to properly advise you as to what assets fall under probate and what assets pass outside probate. The Inventory serves as a report of the Executor’s work in identifying and gathering the assets of the estate, and tells the creditors if there are any assets they might be able to collect against.
Although I don’t want you to be intimidated, the probate process can be a daunting experience for someone who has never been through it before. Therefore as I have already pointed out, hiring an experienced probate attorney is a must. No two probates are the same – some are simple and you may need minimal help in navigating the process. But others are extremely complex and you may need more extensive help. And everything in between. In any situation, the attorneys at Haiman Hogue, PLLC are more than qualified and would be honored to assist you through this mine field we call the Texas legal system.