Assuming there’s a will, we would file the original will with the court, along with an application to probate the will, and appoint our client as the executor. We would prepare an oath for that client whereby they would swear that they’re going to fulfill the terms of the will and they will sign that in front of the clerk. We would prepare a proof of death, which is an affidavit stating the facts of the decedent’s life and that they are deceased. We would schedule the probate hearing, attend the probate hearing with the client, and provide the necessary documents and testimony to the court to get letters testamentary. After the court signs the order, the clerks issue letters testamentary, which is basically the court’s authority to step in, in place of the decedent.
Once the executor has letters testamentary, the executor can access accounts to transfer property and distribute property outlined in the will. We would send a notice to any known creditors, secured and unsecured, as well as posting a notice to unknown creditors in the newspaper. There are certain statutory guidelines, as far as creditors making claims against the estate, and the sending of the notice starts that process and timeline. We would also send notices to any beneficiaries. We would work with the executor in making a list of the assets of the estate and that would get filed with the court as an inventory, appraisement, and list of claims. We would assist the executor in getting any creditors paid, determining if they’re valid creditors or not, and distributing assets. If anything requires documentation to transfer the title, we would prepare deeds for them to transfer that property. If necessary, we could close the estate. Typically, we leave the estate open, so if any other assets become known in the future, we don’t have to reopen the probate.
If there is not a will, in addition to the above, as related to an administrator of the estate, we would also file an application for the court to determine who the heirs are. We would ask the court to appoint an attorney ad litem to investigate the affairs of the decedent and who the heirs are. We would work with that attorney ad litem in getting them the names of disinterested parties who can testify as to the facts of the decedent’s life and who the heirs are, and then we would go to court with the client and present the necessary evidence. If there’s a will, the client is typically called an executor; if there’s not a will, the client is typically called an administrator. We would, without the will, assist the administrator with all the steps above assuming that it’s independent. If it’s dependent, we would go back to court with them and file the necessary motions to get the court to approve any action that they needed to take in winding up the estate.
How Long Does The Probate Process Take?
Generally, probate takes three to six months. What typically takes the longest is just identifying any creditors that are out there and making sure that we don’t distribute the assets before we’ve accurately identified the creditors and gotten them paid. It usually takes three to four weeks to get in front of the court and get the letters testamentary. If there is no will, then the probate process can take six months to a year or longer. Sometimes, it can take six months just to get in front of the court, depending on how long it takes the attorney ad litem to get appointed and to do their investigation.
Misconceptions About The Probate Process
The most common misconception is that probate is difficult, expensive, and needs to be avoided. Many times, we have people who come to us and they want to plan to avoid probate. We walk through what they have and whether it makes sense to try to avoid probate or not. In Texas, probate is, if you have a valid will, a simple and inexpensive process. Another misconception is that people just don’t know that probate needs to be done. They assume if they are a surviving spouse or a surviving child, that they just inherit everything, and unfortunately, sometimes many years go by and they don’t realize that they need to go through the probate process to clear up title to the property. When they go to sell the property years later, they find out that all or part of the property is still in the estate of the decedent. It can then take more time and expense to clear things up than if it had been done right away.
Why Do We Hear So Many Horror Stories About Probate?
The negative experiences with probate will always stand out. There are people out there who will challenge wills and family members who do not get along, who will try to make each other’s lives miserable. There are horror stories out there and we run into them occasionally, but those are the minority. We never hear about the majority of times when probate goes smoothly and everyone moves on afterward. It’s those few bad ones that make people fear the probate process.
In addition, many other states have dependent administration and more difficult probate procedures and laws. Texas has one of the simplest, if not the simplest probate process if you have a valid will. We’ve met with people from other states who have grown to fear the probate process, but in Texas it is generally not something to be afraid of.
For more information on Probate Process In The State Of Texas, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (830) 625-9300 today.