Probate

Probate With A Will

What does it mean to probate a Will? Probate involves taking the Will through a series of specific legal steps in a Texas court—and like most legal processes, everything has to be done just right, and in just the right order. The probate process may seem overwhelming, but our attorneys will take you through it step-by-step:

Locate The Will

lIf the decedent left a Will, the first step is to find the original will. The probate court cares about seeing the original Will. However, if the original is lost and all you have is a copy, the copy can be probated too. We review the Will to ensure it is a legally valid document. 

File The Application For Probate

Then we file an Application for Probate in the county where the decedent resided (e.g., Travis County, Williamson County, Hays County). In the Application, we request (1) that the Court admit the Will to probate and (2) appoint you the executor of the estate. Once the application has been filed, the constable will post a notice at the courthouse stating that an Application for Probate has been filed. After the notice has been posted for ten days, we are then able to schedule a hearing. 

Attend The Hearing

Prior to the hearing, we will prepare all of the legal paperwork necessary and also coach you on what to do at the hearing. Many Texas probate courts, including those in Hays, Travis and Williamson counties, are conducting hearings remotely via Zoom. As such, there is often no need to physically appear at the courthouse. The hearing itself will take between five and ten minutes. At the start of the hearing, the judge will first call the case, swear you in, and then your attorney will ask you a series of questions about the deceased and his or her Will. These questions are all ‘yes or no’ questions. The judge may also ask some follow-up questions. Before the hearing, we will give you a ‘script’ of the questions we will be asking you, so that you know what to expect beforehand. After the hearing, the judge Will sign an order admitting the Will to probate and appoint you executor of the estate. 

File Post-Hearing Documents

After the hearing, you will sign the Executor’s Oath, stating that you swear to faithfully perform your duties as executor of the estate. At this point, you are authorized to act on behalf of the estate and are entitled to receive letters testamentary. You can present these Letters Testamentary to banks, title companies, financial institutions, or any other third-parties who require proof that you are executor of the estate. 

Notice To Creditors

We will also prepare and publish a ‘notice to creditors’ in the local newspaper. In addition, we will send individual notices to any secured creditors informing them of the probate as required by law. 

Prepare And File Inventory

The last step in typical probate is to prepare and file an inventory of the estate. The inventory is a legal document that identifies assets belonging to the estate and their approximate values. We will help you prepare this inventory and get it approved by the court. After the inventory has been approved, you can then pay off any remaining debts and distribute the remaining assets to the beneficiaries. 

Probate Without A Will

When someone dies without a Will, the probate process is more involved. The first step is to determine the family and marital history of the decedent. This is important because when someone dies without a Will, Texas law dictates who is entitled to the decedent’s property (these people are the ‘heirs’). 

File Probate Applications

To initiate the probate process, we first file two applications: (1) an application to determine the heirs of the decedent, and (2) an application to appoint an administrator of the estate. 

Gather Witnesses

For the probate hearing, we will need two witnesses who are familiar with the decedent’s family and marital history and can testify at the hearing. The witnesses can be any non-family members who knew the decedent well enough to know how many children and marriage the decedent had. 

Attorney Ad Litem Investigates

After the applications have been filed, the Court will then appoint an ‘Attorney Ad Litem.’ The attorney ad litem is an independent, court-appointed attorney whose job is to investigate the family and marital history of the decedent to ensure there are no unknown heirs out there. We may know who all of the heirs are, but the court won’t take our word for it and thus requires the attorney ad litem. The ad litem will investigate, interview our witnesses, and file a report with the Court stating that there are no unknown heirs. Once this report is on file, we are allowed to schedule a hearing. 

Attend Hearing

The hearing takes about 15 minutes and we will fully prepare you for it beforehand. Present at the hearing will be you, your attorney, our two witnesses, the attorney ad litem, and the judge. Probate courts in Travis county and in many surrounding counties are conducting probate hearings remotely via Zoom, so oftentimes there is no need for any of the parties to physically travel to the courthouse. At the hearing, the attorney will ask the witnesses a series of questions confirming the decedent’s family and marital history. The attorney ad litem will ask the witnesses some follow up questions, and the judge may ask some additional questions. The attorney will also ask you a series of questions as well. At the conclusion hearing, the judge will enter a judgment declaring the heirs of the decedent and sign an order appointing you administrator of the estate. 

Post-Hearing Procedures

Getting to the hearing is the hardest part, and the remaining steps tend to go fairly quickly. After signing the Oath of Administrator, you are authorized to act on behalf of the estate, but you will have other duties to fulfill, such as giving proper notice to creditors, preparing and filing an inventory of the estate, paying debts, and gathering and distributing assets of the estate to the heirs. Our probate attorneys will assist you with all phases of this process.

What Is Probate? 

Probate is a legal process through which a court determines who is entitled to the deceased’s property and who will be in charge of the deceased’s estate. Even if someone dies with a legally valid Will, the Will has no legal effect until it has been admitted to probate. Further, the executor named in the Will has no authority to act until officially appointed by a probate court judge. 

Why Is Probate Necessary? 

Probate is generally necessary when the deceased owned ‘probate assets.’ Probate assets include real estate, personal property, business interests, vehicles, cash and more. When a decedent dies with probate assets, some type of probate procedure is generally necessary to clarify and document who owns the assets. Without documentation of ownership, a custodian in possession of an asset (e.g., a bank) is unlikely to turn it over to a person claiming to be a devisee or an heir. Even if we all know who the heirs are, no third party is going to take our word for it unless there is a court judgment to confirm it. 

Probate is also necessary to collect, secure and distribute property. When a decedent dies with probate assets, no one generally has legal authority to automatically access, possess, or distribute those assets. Even if a person was given a power of attorney over the decedent’s property during life, that power of attorney becomes null and void upon death. This makes the collection of the decedent’s property difficult because those in possession of the property are unlikely to give it to someone else without proof of authority (particularly if the custodian is a corporate entity, like a bank). 

By opening an administration, the personal representative is issued letters testamentary or letters of administration from the court clerk that can be presented to those in possession of the decedent’s property as proof of the personal representative’s right to possess it. Once the property is collected, secured, and used to pay off any debts the decedent owed, the personal representative will distribute any remaining property to those entitled to it. 

Probate Services

Our attorneys offer comprehensive probate representation and can assist you with a wide range of probate issues: 

Probate Of A Will

The deceased’s Will must be admitted to probate in order to have legal effect. To get the will admitted to probate, you must file an application to probate the will with the court and prove that the will can be probated. In most cases, an application to probate a will is filed with a request for administration because there is a need to have a personal representative appointed for the estate. 

Probate Where There Is No Will

No Will? No problem. When a person dies intestate (i.e., without a Will) his estate vests in his heirs-at-law. To identify the decedent’s heirs and the property to which they are entitled, any “interested person” can file an application to determine heirship. The interested person is usually an heir, but there are other interested persons (i.e., creditors). If the decedent’s heirs cannot agree on how the estate property should be partitioned, or if they need help settling estate debts or receiving or recovering property due to the estate, you can also file an application for the appointment of an estate administrator. Once appointed, the administrator has the right to possess estate property until debts of the estate are paid, the property is distributed, and the administration is closed. 

Probate A Copy Of A Will

When the original Will is lost and all you have is a copy, all is not lost; you can still probate the copy. The copy of the Will is probated in almost the same way as an original Will. The main difference is that additional evidence is required to probate a copy of a Will. Specifically, to probate a copy of a Will you must prove to the court that the original cannot be found, and you will need the testimony of a reliable witness who: read the Will or a copy of the Will, heard the Will being read, or can identify a copy of the Will. 

Appointment Of Executor Or Administrator

Even if a Will names you as executor of the estate, you don’t automatically have the authority to start administering the estate. First, the probate court must appoint you aexecutor of the estate. Then, after the court has issued an order appointing you executor and granting letters testamentary / letters of administration, you must then take and file and oath and also post bond (if ordered by the court). 

Trust Administration

What if the decedent had a revocable living trust? Many decedents had revocable living trusts in their lifetimes. Although trusts can avoid probate, the reality is that probate is often still necessary. Why? After creating a trust, you still have to fund the trust with the assets you want the trust to hold. If you do not transfer those assets to the trust, then probate may be necessary. Many decedents create trusts but fail to properly place their assets into the trust. And realistically, it is not always practical to place every asset in trust. For example, almost nobody holds title to their automobiles in trust these days. Therefore, probate is often necessary even when the decedent had a revocable living trust. In such cases, both probate and trust administration is necessary. If you are the successor trustee of a Texas revocable living trust, your job is to administer the trust according to its terms and perform all duties imposed on trustees by law. 

Clear Title To Real Estate And Transfer Ownership

Often a deceased’s most valuable property was their home, parcel of land, or other real estate. This is especially true in Austin and surrounding areas such as Williamson County and Hays County, where property values have risen tremendously over the decades. These properties may have title defects or other issues that prevent the heirs, families or beneficiaries from selling the property. In such cases, a real estate probate attorney is needed to clear title to the property so that beneficiaries may receive their inheritances.

Will Executed Outside Of Texas

If a loved one lived in Texas but had a Will from another state (e.g., Oklahoma, California), the Will can still be probated in a Texas court. As long as the out-of-state Will was validly executed in accordance with the laws of that state, then Texas probate courts will extend “full faith and credit” to the Will and allow it to be admitted to probate here in Texas. Out-of-state Wills are sometimes drafted differently than Texas Wills and this can make administering these Wills difficult in Texas. 

Ancillary (“Out Of State”) Probate In Texas

If a probate court in another state has appointed you executor or administrator of an estate but the decedent owned property such as real estate in Texas, then you may need to do what is called an ‘ancillary probate’ in order to obtain good title to the Texas property. If the nonresident decedent’s only Texas property was a house or other real estate, there may be alternatives to ancillary probate that are easier, depending on the circumstances. 

Probate When The Executor Of The Will Has Died Or Is Unable To Serve

Very often spouses nominate each other as executors of their estates in their Wills. Then, in their old age, one of them passes away but the surviving spouse is not well enough to serve as executor or has already died. Under these circumstances you probate the Will with a different executor appointed to administer the estate. 

Probate A Handwritten (“Holographic”) Will

What is a Holographic Will? A holographic Will is a Will that is entirely handwritten. Holographic Wills are valid in Texas and can be admitted to probate. Probating a holographic Will in Texas requires more proof and court testimony than an attested Will (i.e., a ‘normal’ Will that is typed and signed by the testator and two witnesses). 

Buyout Agreements Among Beneficiaries Of A Will

Some beneficiaries desire a buyout agreement when the estate properly cannot be evenly divided between beneficiaries. For instance, maybe one beneficiary wants the house and another would rather have the bank account. The beneficiaries can agree among themselves as to the division and distribution of estate property. Such agreements must be memorialized in a binding distribution agreement or ‘family settlement agreement’ between the beneficiaries. 

Call us today. Probate can be a tiresome and emotionally draining process, but proper guidance from a Texas probate attorney can make your life tremendously easier. The probate attorneys at the Daves Law Firm represent executors, trustees and administrators in probate court throughout Texas, including Travis, Williamson, Hays, Comal and Caldwell counties; Austin, Pflugerville, Bastrop, Round Rock, Dripping Springs, Cedar Park, Buda, Kyle, and New Braunfels.