Learn the Probate Process in Texas
by Wright Abshire Associate Attorney Theresa A. Clarke
Unless you have been appointed as the representative of a deceased person’s (decedent’s) estate, probate and the steps involved are probably unfamiliar to you. Probate is the process by which a will is proved to be valid, and more broadly, the process of administering a decedent’s estate, which means following the steps that involve the court; locating, collecting, and securing the decedent’s property; paying expenses, debts, and taxes of the estate; and ultimately distributing the estate to the beneficiaries or heirs.
In Texas, estate administration is either independent or dependent. In a dependent administration, the person appointed as the administrator must obtain court authority for almost every action. Therefore, many additional steps are involved in a dependent administration. The steps below describe the process in an independent administration. Also, people frequently die without having made a will. When there is no will, there are steps in addition to those listed below.
First, work with an attorney to determine the type of probate and who will be applying to be the representative. If the will doesn’t name an executor, the beneficiaries, or if there is no will, the heirs, may agree to the appointment of one person as the independent administrator of the estate.
The attorney will file an application offering the will for probate and asking the judge to issue Letters Testamentary or Letters of Administration (Letters), which is the official document that gives the executor or administrator the authority to act on behalf of a decedent’s estate. The original will must also be delivered to the county clerk. When there is no will, a second application is usually also filed, asking the court to declare who the heirs are.
The application and will must be on file for ten days before a hearing can be held. The Houston area courts’ dockets are busy; the hearing may not be scheduled for several weeks. At the hearing, if everything is in order, the judge admits the will to probate.
Before the executor/administrator can act, they must sign and file an oath stating they will carry out their duties. Letters are then issued to the executor/administrator.
The Texas Estates Code includes several deadlines that the executor/administrator must meet. Generally, these are as follows:
– Within one month, publish a general notice to creditors in a publication circulated in the county
– Within two months, provide notice to each beneficiary named in the Will, sent certified mail. Within three months, file a document stating that all beneficiaries were properly notified.
– Within two months, send notice to each secured creditor of the estate. Notice can also be sent to unsecured creditors, such as credit card companies, but this is not required in an independent administration.
– Within three months, file a detailed inventory of all estate assets, including the value of each asset. Sometimes, especially when you are relying on third parties for the information, this is a difficult deadline to meet, and the judge may grant an extension.
In addition to meeting the deadlines above, the executor/administrator files tax returns, pays the expenses of administration, and resolves legal debts of the estate. The last step in the probate process is to distribute the estate to the beneficiaries named in the Will or to the decedent’s heirs.
This timeline does not account for difficult issues that may arise, such as a will contest, large unknown debts, or handling distributions to minor beneficiaries, to name just a few. The entire process will take a few months for straightforward cases, to years for complex cases or situations involving litigation.
You may visit our website at www.wrightabshire.com. Nothing contained in this publication should be considered as the rendering of legal advice to any person’s specific case but should be considered general information.