Understanding the Probate Process

There are a couple of different ways to administer an estate. This article assumes that there is a Will. If there isn’t a Will, the process is a little more complex and will be discussed in a later article.

Admitting the Will to Probate

The first step is to file an application with the court to prove the Will is valid and appoint a person to be in charge of administering the estate, called an executor. Most attorney prepared Wills include a “self proving” affidavit. If there isn’t a self-proving affidavit or only a copy of the Will can be found, the people who witnessed the Will being signed will have to testify at the hearing.

In DeWitt, Lavaca, Refugio, and other smaller counties, the hearing will typically be more informal without other parties in the courtroom. In Aransas, Victoria, and other larger counties there will typically be a “docket” where the judge will hear a number of similar cases at the same time and each case will be called up one-by-one. In either case, the hearing typically lasts only a few minutes and goes something like this:

Your attorney: Your name is ____________ and you were the spouse of __________, is that correct?

You: Yes or that is correct or correct (just something in the affirmative).

Your attorney: __________ died on __________ date in Rockport, Aransas County, Texas, at the age of ___, is that correct?

You: That is correct.

Your attorney: And four years have not elapsed since the date of death and the filing of the application, is that correct?

You: That is correct.

Your attorney: The court has jurisdiction and venue over the estate in that ___________ lived in Aransas county at the time of her death, is that correct?

You: That is correct.

Your attorney: _________ died testate and her will was signed on ____________, is that correct?

You: That is correct.

At this point your attorney may show you a copy of the will and ask if you recognize the copy and signature on the will.

You: Yes, I recognize the will and __________’s signature.

Your attorney: And to the best of your knowledge this will was never revoked, is that correct?

You: That is correct.

Your attorney: No state, governmental agency of the state, nor charitable organization is named by the will as a devisee, is that correct?

You: That is correct.

Your attorney: After the date of the will, no child was born to or adopted by ___________, is that correct?

You: that is correct.

Your attorney: No marriage was ever dissolved after the will was made, is that correct?

You: That is correct.

Your attorney: ________’s will names you to serve as independent executor to act independently without bond or other security, is that correct?

You: That is correct.

Your attorney: To the best of your knowledge, the proof required for probate has been made and you are not disqualified by law from accepting letters testamentary or from serving as executor and are entitled to such letters and is the person named in __________’s will, is that correct?

You: That is correct.

And that’s it! At this point, the judge will order the Will be admitted to probate and the executor be issued Letters Testamentary. Letters Testamentary is a letter from the court stating that the executor has authority to act on behalf of the estate. You will need to show this letter to banks, brokerage firms, title companies, etc.

Administering the Estate

After receiving Letters Testamentary, the executor will need to give notice to creditors, thoroughly investigate and prepare an inventory of the assets of the estate, pay debts and taxes owed, and ultimately make distributions to the beneficiaries.

Admitting the Will to probate is the easy part, this where issues tend to pop up and people get into trouble.

The executor owes the heirs and beneficiaries a fiduciary duty. This is the highest standard under the law and where litigation often arises.

Key Takeaways

Navigating the probate process isn’t terribly difficult when you have help. Your attorney will prepare all of the paperwork necessary to get the Will admitted to probate, and be with you at the hearing. The attorney, at least in our firm, will also prepare the documents necessary to administer the estate, such as the notice to creditors, inventory, notice to beneficiaries, etc… Your responsibility will be to gather the information for the attorney and to work with your family members. If you have any questions, please contact me, I am happy to discuss your unique situation.