The Texas probate process can be complicated depending on several factors, the most important of which is whether the deceased person left a valid Will. Most Wills, and particularly any attorney-drafted Will, name an executor and direct that the executor will serve independently and without a bond. If this is the case, then the probate process is relatively straightforward (assuming there is no contest of the Will).
On the other hand, if a person dies without a Will, if none of the named executors can serve, or if the Will does not have the correct language naming an independent executor, the process can be more complicated.
However, what most people think of when they think of probate – is an independent administration. In a typical scenario with a Will and an independent executor, the probate process for an independent administration follows these steps.
Find the Will
First, the Will must be located. Hopefully, the deceased left the original of the Will in an obvious place, and it can be located easily. Many people keep their Will in a safe deposit box. If this is the case, someone must have the authority to access the safe deposit box to get the Will out, or the bank will not let anyone open the box. That is why most attorneys advise against leaving a Will in the safe deposit box.
There is a court process to access a safe deposit box to look for a Will, but this adds another layer of complexity to the situation.
Hire a Lawyer
A personal representative acts for the estate and others whose interests may be affected, not just for themselves. For example, Tarrant County Probate Court No. 2’s self-representation policy requires a licensed attorney for appointment of a personal representative. Consult counsel about the appropriate proceeding and the requirements of the court handling the estate.
File the Application
Your lawyer will prepare an Application for Probate. This application informs the court of certain facts about the deceased person and the Will. The original Will is filed at the courthouse along with the application. Once filed, the court clerk will issue a notice that the Sheriff must post at the courthouse door. This notice must remain there for ten days before having a hearing before the probate court.
The Probate Hearing
After the required notice period, a hearing can be scheduled according to the court’s procedures and availability. Counsel presents the evidence needed for the requested orders. The timing and length of the hearing depend on the case, including whether the will or appointment is contested.
If the court admits the will and appoints the executor, the executor must complete the applicable qualification requirements, including an oath and any required bond. Letters testamentary evidence the executor’s authority after qualification; they are not issued merely because the hearing has occurred.
Notices
After appointment, the representative must address creditor notices, including publication and any required direct notice. The deadlines and methods differ by type of notice and creditor; counsel should identify those that apply. Texas Estates Code Chapter 308 sets out beneficiary and creditor notice requirements.
Beneficiary notices and related proof of compliance also have statutory requirements and exceptions. Keep the necessary records of publication, delivery, and filings rather than assume that one notice satisfies every obligation.
Inventory
Under Texas Estates Code Chapter 309, the personal representative generally must prepare and file an inventory, appraisement, and list of claims within 90 days after qualifying, unless a statutory exception applies or the court grants a longer period. The inventory concerns estate property subject to administration, not only property disposed of by the will. Assets that pass outside probate require separate assessment based on ownership and beneficiary arrangements.
An independent executor may file an affidavit in lieu of the inventory when the conditions in § 309.056 are met. This alternative does not eliminate the duty to prepare the inventory or provide it to those entitled to receive it. Counsel can identify the required information, applicable deadline, and filing procedure.
Claims of Creditors
If any creditors of the deceased file a claim, the executor must evaluate the claim to determine if it is valid. The executor must pay all valid claims out of the property of the estate unless the estate does not have any property that is subject to creditors’ claims. Some of the estate property may be exempt from creditors’ claims. The claims process can be very complicated if there are many debts.
Distributing Property to Beneficiaries
Once the estate is ready for distribution, the representative transfers property to the beneficiaries or heirs entitled to receive it, subject to remaining obligations and the applicable procedure. Transfers may require checks, delivery of property, or deeds. Counsel can advise on appropriate accounting, receipts, and closing steps under Texas Estates Code Chapter 405 for an independent administration.
As you can see, even a “simple” probate has many steps that can be overwhelming. However, things get much more complicated when there are errors in a Will’s execution, where there is no executor named or able to serve, or when there is a contest of a Will. Regardless, at Dawson Springman we can guide you through the process and take the burden off you. Schedule a consultation to learn how we can help you with this complicated process.
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