Probate Procedure and Probate Process:
Typically, the executor or administrator files the probate application with the help of their probate attorney and Will if applicable. Then there is a posting period for a Will or administration for at least ten days before executor or administrator can probate the Will and/or have an estate administration if an intestate heirship (an estate administration without a will).
At the probate hearing, the executor or administrator proves the validity of the Will and seeks to be appointed executor or administrator with aid of their attorney. After the probate hearing, the executor or administrator will receive “letters of testamentary” or “letters of administration” from the probate court. Thereafter, if there is an independent administration granted by probate court the executor or administrator collects estate assets. The probate court will expect the administrator or executor to do an estate inventory and file a notice to creditors for the estate with aid of their attorney.
There is also a requirement of notice to heirs from the executor or administrator. For independent administrations this completes most of functions of administrator or executor. As your attorney, I will be involved in each step of the probate process. Will probates can be completed within several weeks. Estate administrations that are intestate (no Will) can take a month or more depending on the probate court.
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SOME STEPS IN PROBATE IN TEXAS
1) Find the original will. The executor named in the will (or other interested party) contacts a lawyer and a contract of employment is signed.
2) The lawyer files the original will with an Application for Probate of Will and Issuance of Letters Testamentary.
3) The County Clerk issues citation and they post notice at the courthouse that an Application for Probate of Will has been filed (SeeProbate Code Section 33(f)(2)).
4) After notice has been posted for the requisite time (click here for details), the lawyer calls the court to which the case has been assigned and gets a hearing date.
5) The lawyer and the named executor attend the court hearing where the facts of death are proved up. If the will was self-proven, only the executor needs to give testimony. If the will was not self-proven, a witness to the will must also testify at the hearing that the will was executed as required by law. A written version of the oral testimony is prepared before the hearing, and that written version is signed by the witness(es) in the presence of court personnel immediately after the oral testimony.
6) When the judge approves the Application for Probate of Will, the executor and the lawyer go to the County Clerk's office where the executor takes the Oath of Executor.
7) While at the County Clerk's office, Letters Testamentary are then ordered from the County Clerk's office. They usually mail them to the lawyer's office within the week. Letters Testamentary are official documents issued by the court authorizing the executor to act for the estate. They are the proof to others that the executor has been qualified by the court.
8) A Notice to Creditors is prepared by the lawyer and sent to a newspaper for publication within one month after receiving Letters Testamentary (Probate Code Section 294).
9) Within two months after receiving Letters Testamentary, the executor shall give notice of issuance of such Letters to those having claims against the estate that are secured by real or personal property of the estate (See Section 295).
10) The newspaper prints the notice and sends a copy of the notice, along with a Publisher's Affidavit about when the notice ran, to the lawyer. The lawyer then files the Affidavit and notice with the court.
11) The lawyer gets a copy of the signed court order admitting the will to probate and, not later than sixty days after the will is admitted to probate, the personl representative sends a certified letter out to each beneficiary named in the will with a copy of the court order and a copy of the will admitted to probate (See Section 128A).
12) Not later than the 90th day after the date of the order admitting will to probate, the personal representative must file with the court a sworn affidavit stating that the notice to beneficiaries has been notified.
13) The executor, with assistance from the lawyer, prepares an Inventory, Appraisement and List of Claims that shows the assets of and claims against the estate as of the date of death. The inventory is filed with the court within 90 days after the executor is qualified by the court (See Section 250).
12) A final federal income tax return for the year the deceased died is due by April 15 of the following year.
13) Federal estate taxes may be due for larger estates.
14) If any creditors make a claim on the estate, the executor must, within 30 days, either accept or reject the claim or any part of it (See Section 309).
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