Probate With a Will in Texas
Dallas, Texas Probate & Administration Attorneys
Do you need to probate a will in Texas? Are you tasked with getting a Letter of Testamentary? Have you been called on to act as an estate administrator?
Probate is a court-supervised process that authenticates a Last Will and Testament (internal link). The process involves locating and determining the value of the decedent’s assets, paying off debts and taxes, and distributing the remainder of the estate to beneficiaries. Even probate with a will can be a challenge to navigate. Having an experienced estate planning law firm in your corner can ensure every step goes smoothly, and the best possible outcome is achieved.
How to Probate a Will in Texas
Depending on the county where the person who wrote the will lived at the time of death, Texas courts will sometimes require that the executor of the will be represented by an attorney. The Statutory Probate Court oversees the process if the testator lived in a metro area, while in rural areas, the Constitutional County Court presides over probate. The probate process can be straight forward or complex, depending on the size and nature of the estate.
What is a Letter of Testamentary?
A letter of testamentary is a certificate specifying the name of the individual who has been authorized by the court to deal with the assets of an estate, which includes bank accounts. In order to obtain a letter, you must apply to the court to open a probate proceeding (if there was a will) or to open an administration proceeding (if the deceased died without a will, also called intestate).
Before a letter of testamentary can be issued, the court must hear evidence to determine:
- That the decedent is actually dead
- Whether the decedent had a Last Will and Testament (internal link)
- If there is no will, the identity of the legal heirs of the decedent
- That the applicant is qualified to obtain the letter (they have never found guilty of a felony crime, never been found mentally incompetent or convicted of the misdemeanor crime of theft)
Though getting a letter of testamentary sounds like a simple task, unfortunately, that’s not the case. You cannot just call or visit the courthouse to get a one. Obtaining it will involve a court proceeding, and you should have the help of a lawyer.
Administering the Estate
The administration of an estate is typically the responsibility of the executor noted in the will. If an estate needs to have an estate administrator appointed, there will be a court hearing to give the court testimony about the need for an administration of the estate. If the court appoints you as estate administrator, you will have 20 days to fil an oath of office.
Responsibilities of the Personal Representative
The personal representative of the estate should take possession of all property belonging to the deceased. Cash received from the estate should be kept in a separate bank account and not commingled with the personal representative’s own assets. The administrator’s duty is to pay estate debts and distribute the remaining assets, as stated in the will or by Texas law.
Professional Guidance for Probate
Although it’s not required by law, having an attorney help you through the Probate process brings peace of mind knowing everything is done in accordance with the law. At the Parvin Law Group, we provide expert, caring services to our clients through the Probate and Administration process in a timely, cost-friendly way. We want to help you.
Frequently Asked Questions
If joint accounts are established with “rights of survivorship,” then they are not subject to the probate process. However, Texas law says that joint accounts are not created with right of survivorship unless the account holders specifically designate it when the account is created.
Under Texas law being the surviving spouse does not mean you can automatically avoid the probate process. Under a traditional deed in Texas, a home does not automatically transfer to the surviving spouse upon death. The same goes for cars, stocks, and other assets.
If the deceased owned any real estate or other property that did not have beneficiaries named, then the Will must be probated in order to transfer titles to lawful heirs.
It’s best to speak to a probate lawyer and ask them. Typically, that lawyer is going to start by examining the Last Will and Testament of the deceased and ascertaining whether the Will allows for “Independent Administration” or administration that is “free from court supervision.” If it does, then it is likely the probate will be a simple process. Even if it does not, however, there are sometimes still options that allow a simplified, independent administration of the estate.
Each case is different. Some cases involve a fairly simple legal process that requires only one court hearing and a few legal filings. Other cases, however, require extensive court involvement and considerable effort. Typically, the difference involves the type and extent of the estate plan the deceased had in place. A licensed attorney can help you better understand how complicated your case may be.
You have four years from the date of the decedent’s death to file the Will for probate. If the Will is never filed, the decedent is treated as having died without a Will, and the heirs determined under Texas law will be entitled to the decedent’s assets.
If you don’t probate a Will, then certain assets may not be properly transferred and may stay in the name of the deceased. For example, if nothing is done to formally transfer the title from the deceased to the heirs or beneficiaries, then the home will not be able to go up for sale.
In most contexts, the word “probate” refers to the legal process that deals with the assets and debts left behind after someone dies. By default, probate is supervised by a court, called the probate court. When someone dies with a Last Will and Testament, the probate process is used to prove the validity of a will. Depending upon the type of probate matter, most probate actions in Texas can be relatively simple and cost-effective.