What is probate and why does it matter?
Probate doesn't have to be a scary process, with a proper will it can be simple.
Probate is, simply stated, the process by which assets from a deceased person's estate are disbursed.
Most probate proceedings are independent in nature and require minimal court invovlement. However, when the idea of probating someone's will comes up, it can be a bit frightening. But with the right documents and right help, the process can be simple and quick.
There are of course horror stories about people who go to simply probate a will and end up in years of administration. These are the EXTREME exceptions to the rule. They are the most grievous examples from among many different experiences.
When I'm in probate court, without fail, the most difficult cases are one's that either don't inovolve a will or worse, involve a poorly drafted will. In Texas, probate can be very simple if you leave a properly drafted will.
The following is a very simple outline of the probate process for Independent Administration in Texas.
Starting the Probate Process...
Initiating the probate process is actually fairly easy. Whether or not the Decedent died with a Will, an application for probate will need to be filed in a Texas Probate Court.
Once the Application has been filed, Texas probate law requires that you must wait approximately 2 weeks before you can have a hearing on the Probate Application for the Court to determine the necessity to open the Administration of the Estate and/or to recognize the Decedent's Will as valid.
During the 2 week waiting period, the County Clerk posts a notice at the courthouse that an application has been filed for probate. This posting serves as notice to anyone who might want to contest the Will or administration that 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 brief hearing will be conducted before the probate Judge. At that time, the Judge will recognize that:
- the Decedent has died,
- that the Court has jurisdiction over the case (i.e. the ability to dispose of the matter)
- 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 was valid.
Once the court makes these determination and few others, the court will admit the will into probate and the executor will be issues "Letters Testamentary" that allow the executor to begin working on behalf of the deceadent's estate.
The Texas Estates Code requires that executors and administrators in any probate proceeding complete two requirements. While additional requirements may be imposed as a result of the specific type of probate you employ, every executor or administrator will be required to:
- Publish a Notice to the Creditors and
- File an Inventory of the Estate Assets
The Notice to Creditors is a notice published in a newspaper in the County in which the probate proceeding is pending. The notice simply informs any potential creditors of the Deceased that the probate proceeding has been opened. It also tells them the identity of the Executor and the address of their attorney, and it notifies the creditors that they must file a claim against the estate if they desire to be repaid for their outstanding debt.
The Inventory of the Estate Assets is a detailed listing of all of the assets that were owned by the Decedent as of the date of his or her 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 with which it should be concerned in the probate administration.