Texas Probate 101

When a loved one dies, family members often wonder what to do and where to start in the Probate process. This article will provide some basic information to give the reader an idea of where to begin.

First Steps—Determining the Validity of The Will

The first question when it comes to Probate in Texas is whether the decedent left a valid Will. In Texas, the Will execution requirements specify that the will must be in writing. It can be typed or handwritten. If handwritten, it must be entirely in the handwriting of the person making the Will (known as the Testator). If the Will is typed, it must be attested to and signed by two witnesses who saw the person making the Will actually signing the Will. The witnesses must sign the Will in the presence of the person making the Will. The Will must be signed by the Testator.

Additionally, the Testator must possess the legal capacity to execute a Will. This means that the Testator must be at least eighteen years old, or be married, or be a member of the armed forces of the United States, or an auxiliary of the armed forces, or the United States Maritime Service. Tex. Est. Code § 251.001. A Will must be proven to be admitted to Probate. Texas law allows for the use of signed affidavits by the Testator and witnesses, which may be made at the time of the Will’s execution in lieu of testimony in court. Tex. Est. Code § 251.102 and 256.153.

Texas law requires that the Testator be of sound mind at the time the Will is made. Being of sound mind means having the mental ability to understand the business being conducted, the effect of making a Will, the general nature and extent of their property, knowing their next of kin, and the natural objects of their bounty. If the person is experiencing dementia or is under the influence of drugs or alcohol at the time of making the Will, this may suggest that he or she was not mentally capable of making a sound decision. If the relatives of the decedent are unsure of the validity of the Will, they should consult an attorney for guidance.

Navigating an Invalid Will

If there is not a valid Will, the process becomes more complicated. Distribution of the estate is governed by the Texas laws of Intestacy, which is too complicated to cover in this article. There is another process called an Independent Administration, which can be used in this situation. This process is more complicated than a probate with a valid written Will, so it will not be covered in this article.

Applying for Probate

Presuming there is, in fact, a valid Will, the Probate process in Texas involves several key steps. The first step is to file an application for the probate of the Will. This application includes specific information about the Testator such as their name, domicile, and facts to show that the court may proceed with appointing an Executor for the estate. The application will include details about any property the Testator owned—such as a general description of the property and its probable value. The application should also include the date of the Will, the name and address of the Executor, and other relevant details about the Testator, the Executor, and the estate itself.

Once this application is filed, the Original Will must be filed with the court. The court must be satisfied 1) that the Testator is deceased, 2) that the application has been filed within four years of the Testator's death, and 3) that the court has jurisdiction and venue over the estate. The court also requires 1) that citation has been served and returned, 2) that the estate does not owe any unpaid debts (other than those secured by a lien on real estate), and 3) that the Will has not ever been revoked. If the Will was not self-proved with an affidavit, the applicant must supply proof that 1) the Will was executed with the required formalities, 2) the Testator was of sound mind, and 3) the Testator met the age and/or marital status requirements under Texas law. This is typically achieved by providing witness testimony.

Letters Testamentary

After the hearing, if the court admits the Will and appoints an Executor, the court will issue Letters Testamentary. Letters Testamentary grant an Executor the authority to administer the estate of a deceased person according to the terms of their Will. These letters give the Executor the legal authority to collect and take possession of the estate’s personal property, record books, title papers, and other business papers, and to administer the estate in accordance with the law.

Essential Deadlines

Next in the process come the thirty, sixty, and ninety day deadlines. A Notice to Creditors is prepared and sent to a newspaper for publication within one month of receiving Letters Testamentary. The Executor has two months after receiving the Letters Testamentary to provide and send notice that Letters Testamentary have been issued to creditors with liens against real or personal property of the estate. No later than sixty days from the date the judge signs the order admitting the Will to probate, the Executor must send certified letters to each beneficiary named in the Will with a copy of the Will. The Executor must also prepare and file a sworn affidavit with the court stating that this notice to the beneficiaries was completed. Finally, the Executor has ninety days from the date the judge signs the order admitting the Will to probate to prepare an Inventory, Appraisement, and List of Claims showing the assets and claims against the estate and the value of each asset as of the decedent’s date of death. In certain cases, an affidavit stating that a detailed inventory has been delivered to all estate beneficiaries may be used instead.

Finally, the executor will need to file a final federal tax return for the decedent in the following year as well as dealing with any potential creditor claims on the estate. Then the estate should be disbursed as provided by the Will. After that, new titles can be issued for cars, boats, and any other property with a title.

Securing Legal Counsel

As you can see, probate in Texas can be quite an intricate process. It is wise for the person seeking to be appointed as executor of an estate for probate of a Will to find good legal counsel to guide them through each step of the process. The attorneys at Doré Rothberg Law are ready and available to help with these exact kinds of probate needs as they arise. Call today to book your free consultation with one of our probate attorneys. (281) 829-1555.