Once a friend or family member has died in Texas, that
person's estate generally must go through a "probate process" in order to
properly administer the estate - to pass property to heirs.
What is probate? In its most simplest terms it is - "proving up a
will." How does it start? It starts by application to the Court
to admit a will to independent administration?
What does it do? It allows the executor, appointed by the will, to
gather property, pay off debt and distribute property to the heirs. In
Texas most probates are not the nightmares that they have been made out to
be. Most probates are governed by a process called "independent
administration." A process which requires virtually no Court supervision
other than a "prove-up."
Independent Administration means that the Executor of the estate will
supervise, administer, and distribute the assets of the estate without court
supervision. How does this work?
First, the deceased must have an executed and valid Will calling for
independent administration. This Will is then filed with the Court through a
document entitled Application for Probate of Will. After a period of 60
days, you and your lawyer will appear before the Court to prove-up the
A "prove-up" is nothing more than a 10 minute hearing before the Court, or
the Court's administrator, where your lawyer asks you several questions
which "proves-up" the Will. The Court will then sign an "Order Admitting
Will to Probate." The Clerk of the Court then issues "Letters
Testamentary" which allows the Executor to distribute and retitle the assets
of the estate in accordance with the Will.
Following issuance of letters testamentary, the Executor will complete a
document entitled "Inventory and Appraisement" of the estate (your lawyer
will provide a blank form for this). Once completed, the document is filed
with the Court.
Though it is not required, you may also file with the Court a document
entitled "Closure of Estate." This is a summary document which spells out
who got what. It is done to "tidy up" the probate. Generally
speaking, we never "close" the estate. The reason is - sometimes
several years later property that was otherwise unknown may appear. In
that regard, having the court available to handle any matter on this issue
The probate process is now complete.
Now for the disclaimers. If the deceased "left a mess," or has an extensive
list of assets invested in every conceivable form, then you could be looking
at some real lawyer time to get it straightened out - depending,
of course, on the nature of the case. Further, the foregoing has not
discussed litigated probate where an heir disputes the validity of the will
or the testamentary capacity of the deceased (hopefully, the deceased had a no
contest clause). This type of problem is an entirely different matter.
Frequently Asked Questions
How long do I have to get a will probated? Generally, that is a
four year statute of limitations. That is, you have four years
from the date of the Decedent's death to file his or her Will for
probate. Although there is a limited exception, a probate by
Muniment of Title, the general rule is that you cannot file for a
probate more than four years after the death. In the event the
four years lapse, then the Decedent is treated as having died without a
Will and his heirs are determined under Texas law who will be entitled
to the assets.
Is a hand written will a good will? Yes it is. Called a
holographic will it is a good and valid will - if. The
will must be written completely in the hand writing of the Decedent.
No portion of the will can be written in the hand writing of another
person and, similarly, no portion can be typed. Hand written will
have been written on all sorts of materials - cards, a piece of wood,
etc. Although a hand written will does not require the
signatures of witnesses, it does require the signature of the person
making the Will, and it must express the Decedent's true intent for the
disposition of the estate.
Are other members of the family liable for the Decedent's debts?
No. The creditors are entitled to recover their debt only against the
assets owned by the Decedent at the time of his or her death.
Other family members are not liable to have to pay any debt of the
Decedent. If his assets are insufficient to pay all of the debts, any
unpaid debts will be deemed uncollectible.
Who has the homestead right in Decedent's home? If the Decedent is
survived by a spouse, the spouse has an absolute right to occupy the
Decedent's home for as long as the spouse is alive. If the home is
mortgaged, the spouse will be liable for those expenses. Likewise, a
minor child living in the Decedent's home at the time of death has the
right to continue living in the home until they are no longer a minor.
In addition, an unmarried adult living in the home has the right to live
in the home.
What property goes through the probate process?" All of your property is
subject to probate unless it is governed by some other instrument which is
"outside" of probate. For example, property governed by Living Trust,
Irrevocable Trust, joint tenancies in common with right of survivorship, and
properties governed by contract such as Life Insurance and or trusts are
outside of probate.
How much does probate cost? Unfortunately, there are lawyers out there who
would charge an exorbitant price for handling a probate. Jackson Law
handles probate process on a flat fee basis. If you have a
properly drawn Will calling for independent administration without bond, the
probate process should not be time consuming or expensive. This, of course,
is directly dependent upon the organization of the estate and its size.
Recognize, if your spouse or relative “left a mess” then probate costs may
be greater. This can be avoided, however, by organization and
implementation of an estate plan