Probate

During the probate process, the court proves and accepts the deceased’s will as a valid, public document and the last true testament. In a will’s absence, the court settles the deceased’s estate according to the laws of the state in which that person resided or owned property. Granting probate allows claim resolution and property distribution as the deceased, or testator, intended.

Applications for probate should be brought within four years after the testator’s death. Wills can be probated after this period, but justification for the delay must be made so the individual bringing the will is not held in default. All beneficiaries must be notified probate is underway.

Any individual who has the right to lay claim to or against the deceased’s estate may file an application for probate.

When there is a will, Probate officially appoints an executor, the testator’s representative, and empowers this person to disperse assets as requested in the will. The executor, with the court’s assistance if necessary, may enforce the probate will, now deemed a legal document.

The attorney who drafted the will does not have to be the one to probate it. The executor is free to hire an attorney of his or her choice for that task. If the drafting attorney has possession of the will and refuses to release it to the executor, Stallings Family Law can file a motion with the probate court compelling the attorney to surrender the will to the court.

Keep in mind, wills may be contested at any point during the probate process.

Wills can be probated in a variety of ways. Let us help you determine the method that best suits your needs.

How to Probate a Will in Texas

What is probate? Probate is the legal process that transfers title of property from the estate of the person who has died, known as the “decedent”, to his or her beneficiaries. Probate is often sought when the decedent owned real property or financial accounts and the financial institution has requested Letters Testamentary.

How to probate a will? A will is a legal document written to ensure that upon the decedent’s death, the decedent’s property is given to the people specified in the will. For a will to have any legal effect, it must be “proved-up” or probated in a Probate or County Court to prove it was validly executed, that it is the decedent’s last will, and that it has not been revoked. The will and an application asking the court to admit the will to probate are filed with the court. In addition to offering the will for probate, the applicant may also request that the court appoint an executor or administrator for the decedent’s estate. This is how you probate a will in Texas.”

Who can probate a will? The application may be made by the executor named in the will or by any heir, devisee, spouse, creditor, or any other persons having a property right in, or claim against, the estate.

How long do you have to probate a will in Texas? An application for the probate of a will should be brought within four years after the death of the person making the will. A will can be probated after four years, however, the person bringing the will must explain why he or she should not be held in default for not offering the will in a timely manner. Furthermore, all persons who would inherit in the absence of the will must be notified prior to the court considering the application.

Must the executor use the decedent’s attorney that drafted the will? No, there is no requirement that the attorney who drafted the will be the attorney who probates the will. The executor is free to hire the attorney of his or her choice. If the drafting attorney still has possession of the will and refuses to release it to the executor, Stallings Family Law can file a motion with the probate court compelling the executor to surrender the will to the court.

Probate of Will as a Muniment of Title Only (No Administration)

When used – This type of probate is used to admit a will to probate so as to give it legal effect. This type of proceeding is often used when the decedent left a will and the only assets in the estate are the decedent’s home or a very small bank account.

Requirements – In order for the court to issue an Order Admitting Will to Probate as a Muniment of Title Only, the following requirements must be met:

The decedent must have left a valid will;
There must be no debts due and owing by the estate (or the only debts that are owed are secured by liens on real estate); and
There must be no need for a formal administration.

How to probate a will as a muniment of title – The original Will and an Application for Probate of Will as a Muniment of Title Only are filed with the Court. If approved, the court will issue on Order Admitting Will to Probate as a Muniment of Title Only.

Administration– There is no administration with this type of probate. The court does not appoint an executor or administrator in this type of proceeding because no administration is necessary. The court’s Order Admitting Will to Probate as a Muniment of Title Only constitutes sufficient legal authority to all persons to pay or transfer estate property to the person or persons described in the will as the beneficiary of the property. Some financial institutions, however, may insist on only releasing estate funds to a court-appointed executor or administrator. The institutions do this by insisting that they receive “Letters Testamentary” or “Letters of Administration” prior to releasing estate funds. These “Letters” are the documents issued by the court to the court-appointed executor or administrator. If your loved one had securities or significant bank accounts, you may be forced to ask the court for an administration. Therefore, you should check with the decedent’s financial institutions before selecting this type of probate proceeding.

Independent Administration (Unsupervised Administration).

When used – This type of probate is used to admit the will to probate so as to give it legal effect and to appoint an executor to administer the estate. This type of proceeding is the most common type of probate where the decedent left a will.

Requirements – In order for the court to issue an Order Admitting Will to Probate and Authorizing Letters Testamentary, the following requirements must be met:

The decedent must have left a valid will;
There must be a need for a formal administration; and
The will must provide for independent administration by appointing a person to serve as “Independent Executor” or by providing that “no other action shall be had in the court in relation to the settlement of the estate than the probating and recording of the will, and the return of an inventory, appraisement, and list of claims of the estate.”

How to probate a will and receive Letters Testamentary – The original will and an Application to Probate Will and for Letters Testamentary are filed with the Court. If approved, the court will issue an Order Admitting Will to Probate and Authorizing Letters Testamentary.

Administration- There is an administration with this type of probate. The court appoints an executor and issues Letters Testamentary to the executor. The executor will then be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the heirs of the estate in accordance with the terms of the will. In an independent administration, the executor of the estate acts independently from the court. That is, the executor does not need the court’s permission to pay bills or to sell or distribute the assets of the estate. The executor need only admit the will to probate, notify the beneficiaries of the will of his or her appointment, publish a notice to creditors in the local paper, and file an inventory of the estate’s assets with the court.

Court Created Independent Administration(Unsupervised Administration).

When used – This type of probate is used to admit the will to probate so as to give it legal effect and to appoint an administrator to administer the estate. This type of proceeding is used when the decedent left a will but no executor is named in the decedent’s will, or in situations where each executor named in the will is: 1) deceased; 2) disqualified to serve as executor; 3) unable or unwilling to serve as executor; or 4) is not granted independent status. In this situation, all of the distributees of the decedent must agree on the advisability of having an independent administration and must agree on the person to serve as independent administrator.

Requirements – In order for the court to issue an Order Admitting Will to Probate and Authorizing Letters of Administration, the following requirements must be met:

The decedent must have left a valid will;
There must be a need for a formal administration;
All of the distributees of the decedent must agree on the advisability of having an independent administration and collectively designate in the application for probate, a qualified person to serve as independent administrator; and
The Court must find that it is in the best interest of the estate to grant an independent administration.

How to probate a will pursuant to a court-created independent administration

The original will and an Application to Probate Will and for Letters of Administration Pursuant to Section 401 of the Texas Estates Code are filed with the Court. If approved, the court will issue on Order Admitting Will to Probate and Authorizing Letters of Independent Administration.

Administration– There is an administration with this type of probate. The court appoints an executor and issues Letters Testamentary to the executor. The executor will then be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the distributees of the estate in accordance with the terms of the will. In an independent administration, the executor of the estate acts independently from the court. That is, the executor does not need the court’s permission to pay bills or to sell or distribute the assets of the estate. After the hearing, the executor need only admit the will to probate, publish a notice to creditors in the local paper, and file an inventory of the estate’s assets with the court.

Dependent Administration (Fixed Fees Never Available)

(Supervised Administration).

When used – This type of probate is used to admit the will to probate so as to give it legal effect and to appoint an administrator. This type of proceeding is used when the decedent left a will but no executor is named in the decedent’s Will, or in situations where each executor named in the will is: 1) deceased; 2) disqualified to serve as executor; 3) unable or unwilling to serve as executor; or 4) is not granted independent status. In this situation, all of the distributees of the decedent cannot or will not agree on the advisability of having an independent administration or the choice of administrator. This is often the case when the beneficiaries are hostile towards one another.

Requirements – In order for the court to issue an Order Admitting Will to Probate and Authorizing Letters of Administration, the following requirements must be met:

The decedent must have left a valid will; and

There must be a need for a formal administration.

How to probate a will pursuant a dependent administration – The original will and an Application to Probate Will and for Letters of Administration are filed with the Court. If approved, the court will issue on Order Admitting Will to Probate and Authorizing Letters of Administration.

Administration– There is an administration with this type of probate. The court appoints an administrator and issues Letters of Administration to the administrator. The Administrator will then be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the distributees of the estate in accordance with the terms of the Will. In a Dependent Administration, the court closely supervises the administration of the estate. Bills cannot be paid and assets cannot be sold or distributed without the approval of the court. Periodic accountings must also be prepared to advise the court of the status of the estate. The amount of attorney time in this type of proceeding is generally a function of the number of creditors of the estate, the amount and character of the assets in the estate, and the amount of contention amongst the distributees. Effective January 1, 2019 Stallings Family Law’s hourly rate for attorney’s fees is $250 per hour. Stallings Family Law’s hourly rate for paralegal work is $100 per hour. Therefore, we advise this as a last resort and encourage families to settle their differences before pursuing this type of administration.

Probate without a Will

Who can initiate probate proceedings? The application may be made by any heir, devisee, spouse, creditor, or any other persons having a property right in, or claim against, the estate.

What is the time limit for starting probate? If you would like the court to appoint an administrator of the estate, that application must generally be brought within four years after the death of the decedent. The court will often ignore this rule if there is property due to the estate that needs to be collected by an administrator. Other types of probate can be brought at any time.

What happens when a person dies without a will? All is not lost if your loved one dies “intestate”(without a will). Texas has default inheritance rules in place for such an occurrence. See Texas Estates Code Chapter 201. Therefore, if there is no will, or the decedent’s will is found to be invalid, the decedent’s heirs can still be determined and the decedent’s estate can still be probated.

Therefore, if there is no will, or the decedent’s will is found to be invalid, the decedent’s heirs can still be determined and the decedent’s estate can still be probated.

Affidavit of Heirship (No Administration)

When used — This type of affidavit is used to establish title to real estate where the sole asset of the estate is real property.

Requirements — In order to file an affidavit of heirship, the following requirements must be met:

The decedent must have died without a will;
No petition for the appointment of a personal representative may be pending or have been granted; and
No formal administration is necessary.

Procedure — An affidavit of heirship is prepared that details the decedent’s heirship facts and the assets of the estate. The affidavit is then signed before a notary public by two disinterested witnesses. The affidavit is then filed in the real property records on file with the county clerk’s office.

Administration — There is no administration associated with this type of probate. Affidavits of heirship are filed with the county clerk, not the court.

Small Estate Affidavit (No Administration with Court Approval)

When used — This type of affidavit is used to collect a small amount of money owed to the estate (such as a small bank account). A small estate affidavit may also be used to transfer title to real property that still qualifies as a homestead upon the death of the decedent.

Requirements — In order for the court to approve such an affidavit, the following requirements must be met:

The decedent must have died without a will;
The assets of the estate, exclusive of homestead and exempt property, must exceed the known liabilities of said estate, exclusive of liabilities secured by homestead and exempt property;
No petition for the appointment of a personal representative may be pending or have been granted;
Thirty days must have elapsed since the death of the decedent; and
The value of the entire assets of the estate, not including homestead and exempt property, must not exceed $75,000.

Procedure — A small estate affidavit is prepared that details the decedent’s heirship facts and the assets of the estate. The affidavit is then signed before a notary public by all of the heirs of the estate and two disinterested witnesses. The affidavit is then filed with the court which either approves or denies the affidavit. If approved, the Court will issue an Order Approving Small Estate Affidavit. The Order constitutes authority for the bank to transfer the money to the distributees named in the affidavit.

Administration — There is no administration associated with this type of probate. The court does not appoint an administrator in this type of proceeding because no formal administration is necessary. Some financial institutions, however, may insist on only releasing estate funds to a court-appointed executor or administrator. The institutions do this by insisting that they receive “Letters Testamentary” or “Letters of Administration” prior to releasing estate funds. These “Letters” are the documents issued by the court to the court-appointed executor or administrator. If your loved one had securities or significant bank accounts, you may be forced to ask the court for an administration. You should check with the decedent’s financial institutions before selecting this type of probate proceeding.

Determination of Heirship (No Administration with Court Judgment)

When used — This type of probate is used to establish title to estate property where the assets include real and/or personal property and the estate does not qualify for a small estate affidavit. This type of probate is also used when the all of the heirs of the estate cannot or will not sign a small estate affidavit.

Requirements — In order for the court to issue a Judgment Declaring Heirship, the following requirements must be met:

The decedent must have died without a will or when there was a will but any real or personal property was omitted from such will;
There are no debts due and owing by the estate; and
There is no need for a formal administration to pay bills or collect and distribute estate property.

Procedure — An Application for Determination of Heirship is filed with the court. The court then appoints an attorney ad litem for unknown heirs who will investigate the heirship facts of the decedent. After a hearing, the court will issue a Judgment Declaring Heirship which names the heirs of the estate. The Judgment Declaring Heirship can then be used to prove title to estate property.

Administration — There is no administration associated with this type of probate. The court does not appoint an administrator in this type of proceeding because there is no need for a formal administration. The court merely declares the identity of the heirs of the estate. Please know that some financial institutions insist on only releasing estate funds to a court-appointed executor or administrator. The institutions do this by insisting that they receive “Letters Testamentary” or “Letters of Administration” prior to releasing estate funds. These “Letters” are the documents issued by the court to the court-appointed executor or administrator. If the decedent had securities or significant bank accounts, you may be forced to ask the court for an administration. You should check with the decedent’s financial institutions before selecting this type of probate proceeding.

Court Created Independent Administration (Unsupervised Administration)

When used — This type of probate is used when there is a necessity for an administration and all of the heirs of the estate agree to an independent administration and the person to serve as administrator.

Requirements — In order for the court to create an independent administration, the following requirements must be met:

The Decedent’s date of death must have been within the last four years;
The decedent must have died without a will or the will must have failed to distribute all of the decedent’s property;
There must be a need for a formal administration;
All of the heirs of the estate agree on the agree on the advisability of having an independent administration;
All of the heirs of the estate agree on a qualified person, firm, or corporation that will serve as independent administrator;
The court must find that an independent administration is in the best interest of the estate (note: the court will usually not grant an independent administration if a minor child is an heir to the estate).

Procedure — An Application for Letters of Administration Pursuant to Section 401 of the Texas Estates Code is filed with the court. All of the heirs of the estate must either sign on to the Application or sign a consent form. The court then appoints an attorney ad litem for unknown heirs who will investigate the heirship facts of the decedent. After a hearing, the court will issue a Judgment Declaring Heirship which names the heirs of the estate. The court will also determine if there is a need for an administration and whether an independent administration is in the best interest of the estate. If so, the Court will appoint an Independent Administrator of the Estate and issue Letters of Administration to the Administrator.

Administration — There is an administration associated with this type of probate. The court appoints an administrator and issues Letters of Administration to the administrator. The administrator will then be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the intestate heirs of the estate in accordance with the Judgment Declaring Heirship. In an independent administration, the administrator of the estate acts independently from the court. That is, the administrator does not need the court’s permission to pay bills or to sell or distribute the assets of the estate to the intestate heirs. After the hearing, the administrator need only publish a notice to creditors in the local paper, and file an inventory of the estate’s assets with the court.

Dependent Administration (Supervised Administration)

When used — There is a necessity for an administration and all of the heirs of the estate will not or cannot agree to an independent administration or the person to serve as administrator. This is frequently the case when the beneficiaries are hostile towards one another or when one of the beneficiaries is a minor.

Requirements — In order for the court to create an independent administration, the following requirements must be met:

The Decedent’s date of death must have been within the last four years;
The decedent must have died without a will or the will must have failed to distribute all of the decedent’s property; and
There must be a need for a formal administration.

Procedure — An Application for Letters of Administration is filed with the court. At the hearing, the court will determine if there is a need for an administration. If so, the Court will appoint an Administrator of the Estate and issue Letters of Administration to the Administrator.

Administration — There is an administration associated with this type of probate. The administrator will be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the heirs of the estate in accordance with the default inheritance rules. The court closely supervises the administration of the estate. Bills cannot be paid and assets cannot be sold or distributed without the approval of the court. Periodic accountings must also be prepared to advise the court of the status of the estate. The amount of attorney time in this type of proceeding is generally a function of the number of creditors of the estate, the amount and character of the assets in the estate, and the degree of disharmony amongst the heirs.