Probate and Heirship in Texas
Haiman Hogue Probate Professionals
The probate of someone’s estate refers to the process by which a Court recognizes that person has passed away, and authorizes the administration of that person’s estate. The probate process applies both when (1) someone dies leaving a Will, or (2) when someone dies without a Will (called an Heirship Proceeding).
With a Will
Probate of an estate of someone who dies with a Will includes:
- Proving in court that a deceased person is in fact dead;
- Proving in court that a deceased person’s Will is valid;
- Identifying and inventorying the deceased person’s property;
- Having the property appraised (if necessary);
- Paying debts and taxes, and
- Distributing the remaining property as the Will directs.
Typically, probate requires the person named as the Executor to carry out the terms of the Will. The Executor is a person or institution appointed by the testator (deceased person) who wrote the Will. Probate requires the Executor to hire an attorney because Texas law states you cannot do probate on your own. It involves the drafting and filing of certain paperwork required by the Court and at least one (1) court appearance by the Executor and his or her Attorney. The Attorney and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person’s property. Quite often the Executor cannot get to the Estate funds and must pay for the legal and court fees up front and then is later reimbursed by the Estate when the funds are accessible.
Without a Will
Probate of the estate of someone who dies without a Will also requires hiring an attorney. It is similar to a probate of an estate with a Will except the Court applies intestate statutes to determine how your Will will be executed. Thus, if a person dies without a Will in Texas, his or her property will be distributed in the way the government has spelled it out in the Texas Estates Code. Since there is no named “Executor,” someone who is an interested party to the Estate will have to file the necessary legal paperwork requesting that the Court appoint him or her as the “Administrator” of the estate. An added step to the process is that the Court will have to determine the proper heirs. These proceedings are a lot more expensive than when a decedent had a Will.
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