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  February 20, 2020

will-lawyers.jpgThe thought of having to do a probate for a deceased loved one is often scary. Although the legal process can appear complicated to a layman, an experienced probate attorney can comfortably guide you through the process. The actual court appearances and steps required of you as a client are very low-key and relaxed unless there is a Will contest. 

When you meet with a probate attorney, hopefully, you will come out of the meeting with an understanding of the process and what will be expected of you. The attorney should outline for you what steps will be taken and what communication you will receive at every step of the process. 

 

Here is a general outline of what happens in a standard Texas probate of a Will:

1. Filing The Will And Application For Probate

The Will is filed with the probate court in the county in which the decedent lived. Notice of filing of the probate is posted at the courthouse for at least 10 days, and a hearing then is scheduled before the probate judge in that county to be sure the requirements for probate there are met.

2. The Hearing And Immediate Follow-Up

Generally, the executor appears before the judge, but this is not absolutely necessary in every case. Sometimes, the judge will allow an executor who lives far away to appear by teleconference. (Other judges, however, will insist on appearance of the executor before them.) The hearing is generally very casual. It usually takes place either in the judge's office or a small meeting room around a table, not in a big scary courtroom. The executor or other representative merely establishes under oath that the decedent died on a given date, where the legal residence was at the time of death, that the will filed is the last will of the deceased, and that it was properly executed and witnessed, who was named to serve as executor, and a few other statutory requirements.

If the judge finds the requirements have been met, an order admitting the will to probate and appointing the executor is signed by the judge and filed with the clerk. The executor then swears to and files an oath agreeing to fulfill his or her legal duties, and letters testamentary are then issued by the clerk. These letters are the legal proof of authority to act on behalf of the estate which the executor will present to third parties. The executor must then provide proof that these steps have occurred to beneficiaries of the estate, or have them sign a waiver of receipt of such proof. The attorney will handle all of these follow-up steps.

3. Filing Inventory And Appraisement Or Affidavit In Lieu Thereof

In the past, Texas law required that the executor file an Inventory and Appraisement of the estate within 90 days of being appointed, unless the court extended that deadline. This required listing of assets and at least the best effort at estimating their value. Many people did not like having to file this summary of assets in the public records in the county clerk’s office. Texas now allows this to be avoided by the executor providing the inventory to all beneficiaries, who agree to waive filing the inventory in the public record of the probate. The executor then files a sworn affidavit with the court attesting that this was done. 

How detailed the inventory and appraisement must be depends on the:

  • Complexities of the estate
  • Whether there is likely to be any question of assets owned or values by beneficiaries or creditors
  • And other variables 

Estate Planning Probate Will Testament.jpg4. Notice To Creditors

Texas law provides that notice must be published in a newspaper of general circulation in the county in which the probate is filed to allow creditors to file claims against the estate. A specific notice also is required to be mailed to certain secured creditors of the estate. Proof of compliance with the notice requirements is filed with the county clerk in the probate case. These steps are all handled by the attorney. 

5. Payment Of Creditors And Recognition Of Rights Of Others

There are complicated rules in Texas statutes setting out the filing, approval, prioritizing, and payment of claims filed against the estate. This is probably when legal counsel is needed most. There are certain rights of surviving spouses to homestead in real estate and certain personal property, and other priority claims that should be recognized by the executor, too.

6. Distribution Of The Estate

If the will provided for an independent administration of the estate or all of the heirs agree to an independent administration, the executor is then free to:

  • Settle with creditors
  • Distribute assets in kind
  • Sell assets
  • Otherwise settle and distribute the estate

In an independent administration, no further court involvement is needed, and no final report has to be filed with the court after the inventory and appraisement and claims procedures have been satisfied. However, in some cases the executor may be wise to file a final report to indicate of record that his or her duties have been fulfilled.

If your loved one has passed away and you would like an attorney to guide you through the probate process, contact Adair M. Buckner, Attorney at Law. Adair has successfully provided probate services to Amarillo and Texas Panhandle residents for more than 40 years. Set up a free initial consultation today*  and allow her to guide you through this complicated process.

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*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

 


 

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*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

Article Topics:
Estate Planning Probate