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Texas Probate FAQ

What is Probate?

Probate is the legal process of administering a deceased person’s estate.* In other words, identifying and securing the decedent's property, paying off debts, and distributing all remaining property to the decedent's beneficiaries or heirs. The probate process will be slightly different depending on whether the decedent died with a will. Regardless, probate begins with the appointment of a personal representative who will be responsible for administering the decedent's estate. Additionally, if the decedent died without a will, probate will involve the court making a determination of who the decedent's heirs are. 

*In Texas, probate courts also have jurisdiction over guardianship matters.

What does it mean for a will to be "admitted to probate"?

When a will is "admitted to probate" it means that a court has reviewed the will and determined that it was (1) executed with all the formalities required by the Texas Estates Code (2) by a person with the capacity to execute a will, and (3) that the will was never revoked. By "admitting the will to probate" (also referred to as "probating the will"), the court accepts the will as being a true representation of the decedent's wishes and only then does the appointed executor have the authority (and responsibility) to carry out the terms of the will. 

Do I really need an Attorney just for Probate?

Yes. Most probate courts require an applicant for probate to be represented by an attorney.  Additionally, when choosing an attorney to represent you in a probate matter, retaining one with probate experience is wise.  Think of this like building a house. You could pay the carpenter for both the carpentry and electrical work, but it is better in the long run to let the carpenter do the carpentry and the electrician the electrical. Probate in Texas can be complicated and selecting an attorney with probate experience will simplify the process.

How long will Probate take?

For a simple estate, the entire probate process can likely be completed within 4-6 months. However, more complicated estates with more complex family dynamics or more assets may take longer. Additionally, different courts have different caseloads and different procedures for managing their docket, so the court your case is filed in will likely be a factor as well. Regardless, your probate attorney should keep you updated on the progress of your case.

How can I help this process go quickly and smoothly?

Provide your probate attorney with the information they request in a timely manner. Take the lead in contacting and coordinating with your family members/heirs whose written consent will often lead to an expedited result. Complete all paperwork given to you by your probate attorney as soon as possible after receiving it. 

How does the court decide who inherits from the decedent?

When a person dies with a will, the will generally names the beneficiaries who will inherit the decedent's property. When a person dies without a will, their heirs are determined by statute. The Texas Estates Code lays out the rules for who inherits from a decedent’s estate in the absence of a valid will. As would be expected, a spouse and children come first with less closely related relatives inheriting in the absence of a spouse or children. 

What if one of the heirs or beneficiaries treated the decedent badly? Can I keep them from inheriting?

No. Generally speaking, there is no mechanism for cutting “bad heirs” or "bad beneficiaries" out of their interest in the estate.

Terms your Probate Attorney will use

Decedent

The person who has died

Estate

The sum of a person’s assets, including legal rights, interests, and entitlements to property of any kind. An estate includes any actual or potential claims held by the decedent at the time of their death.  

Personal Representative

A person appointed by a court to step into the shoes of a decedent to manage and later distribute their estate.

Administrator

The title given to the personal representative of the estate of a decedent who died without a will. An administrator may be appointed to serve dependently or independently (discussed further below). 

Executor

The title given to the personal representative named as such by a decedent in their will.

Heirs

The people, designated by state law, who are entitled to receive all or a portion of a decedent’s estate upon their death.

Beneficiaries

The people and/or entities designated in a decedent’s will as being entitled to all or a portion of a decedent’s estate upon their death.

Intestate Estate

The estate of a decedent who passed away without a will. 

Testate Estate

The estate of a decedent who passes away with a will. 

Prove Up Hearing

The hearing at which the will is probated or, if there is no will, at which the court appoints the administrator and makes the heirship determination. 

Attorney Ad Litem

Any time the court is asked to make an heirship determination, it is required to appoint an outside attorney to perform a brief investigation into the decedent's family and marital history to confirm that all of the decedent's heirs have been correctly identified. This outside attorney is called the attorney ad litem.

Probate Assets

All of a person's assets, including legal rights, interests, and entitlements to property of any kind, which are subject to the jurisdiction of the probate court and management of and distribution by the personal representative. 

Non-Probate Assets

All of a person's assets, including legal rights, interests, and entitlements to property of any kind, which are legally distributed through some mechanism other than the probate process.  Examples include but are not limited to: bank accounts with "payable on death" designations, retirement accounts with beneficiary designations, insurance policies with beneficiary designations, and property placed in a trust. Non-probate assets are not part of the probatable estate and not subject to the jurisdiction of the probate court.  

Letters of Administration

The certificate issued by the court clerk's office in an intestate estate that serves as proof of the administrator's appointment and qualification.  

Letters Testamentary

The certificate issued by the court clerk's office in a testate estate that serves as proof of the executor's appointment and qualification.

Dependent Administration

An administrator (or executor) may be appointed to serve dependently.  A dependent administrator (or dependent executor) is subject to continuous court oversight.  In other words, a dependent administrator must ask the court's permission before performing any action related to estate property (e.g. selling assets, paying debts, etc.). 

Independent Administration

An administrator (or executor) may be appointed to serve independently. An independent administrator (or independent executor) is subject to limited court oversight and may take most actions related to estate property (e.g. selling assets, paying debts, etc.) without asking the court for permission.  An administrator (or executor) may only be appointed to serve independently if all of the heirs execute written consents to the proposed administrator serving independently or, in a testate estate, if the will explicitly states that the named executor shall serve independently.

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