Probate is the official process to settle the estate of someone that has died. In Texas, the process is fairly easy and straight forward when there is a valid will and with the assistance of an attorney for our office. The process begins by the attorney filing an application to probate a will along with the original will. The court will appoint an executor and the estate is then started. If someone dies without a will, the process is more complex because generally the court will need to determine the heirs of the deceased.
The court will then appoint an administrator and the process will begin. Not all estates or assets need to be probated or may not be subject to probate. An estate that consists of only non-probate assets does not need to be probated. Also, certain small estates that are below a statutory amount can avoid full probate administration. Non-probate assets that can include bank, retirement or brokerage accounts that have right of survivorship and that are payable on death or transfer on death designations. Certain retirement accounts or life insurance policies will have a beneficiary named and that beneficiary is entitled to receive the funds in the account or proceeds from the life insurance outside of probate. Certain deeds, such as” transfer on death deed” or “lady bird” deeds transfer title to real property outside of probate. Trusts are used to transfer assets outside of probate. The probate lawyers at Carroll & Hinojosa, PLLC can help you navigate through the process and advise on the best course of action to take given the facts and circumstances in your situation.
The attorneys at the Law Offices of Carroll & Hinojosa, PLLC will prepare all the documentation needed to start the probate process and then all the documentation needed to complete the process. The Executor will provide the requested information and our lawyers will draft all the necessary documents.
The process to probate a will begins with an Application to Probate Will and for Issuance of Letters Testamentary (Application). The Application is typically filed with the county clerk of the county where the deceased resided at the time of death. Usually an executor is named in the will and the executor is the one who files the Application requesting that the court admit the will to probate. An “interested person” which by Texas Estates Code includes heirs, spouses, devisees, creditors and anyone else having a claim against the estate may file for probate or an administration.
When the Application has been filed with the county clerk, the clerk will post citation (official notice) with a return date to all parties that have an interest in the estate. The court will hold a hearing to probate the will after the return date posted by the clerk’s office.
At the hearing to probate the will, the executor presents proof to the court concerning the decedent’s death and the will. The court determines if the will should be admitted. If admitted to probate, the court will issue an order that probates the will and appoints the executor. The executor is required to take an oath stating that he or she will perform his duties as the executor.
The executor is then issued Letters Testamentary which allows the Executor to act on behalf of the Estate. The Executor then must provide Notice of Beneficiaries and file an affidavit with the court stating it was done, both within a prescribe time period. The Executor must also file Notice of Creditors to unsecured creditors by publication and to secured creditors by certified mail.
Within ninety (90) days after the date of the order admitting the will to probate, the executor must file a complete inventory of the estate and file it with the court. The inventory will list all the claims owed to the estate, all the real estate in Texas and all the personal property regardless where it is located that is part of the estate. The executor must pay taxes and proper claims of creditors against the estate.
Once you have gathered the assets of the estate, paid all debts and taxes, and determined who is entitled to the remaining property, you are ready to close the estate with the assistance of your attorney.