The probate process in Texas can be broken down into six steps. The first step involves the initial filing of the application for probate, usually in the probate court in the county where the decedent resided. This application includes information such as the description of the applicant, e.g., the person who is filing the application, or the person who was designated in the will, and identifies the decedent. If there is not a will, the surviving spouse or one of the children might initiate the filing of the application. Typically, the probate process will take place in court where the decedent resided.
Part of the application for probate involves asking the court to post notice. This is the second step in the process. The posting is usually done on a bulletin board next to the courthouse door. By statute, there is a 10-day waiting period for posting notice that the probate application has been filed. Once notice is posted, if anyone wants to contest the will or intestate (i.e. the process that occurs in the absence of a will), then they will need to enter a pleading in the case and state their intentions.
The third step is the will validation process. If no one has come forward to contest anything after the posting period has ended, then there will be a brief hearing wherein it must be proven that the will is valid. If there is no will, then it’s a little bit more complex, in that disinterested parties must testify as to the identity of the heirs. Typically, an ad litem attorney will represent any unrepresented or unknown heirs. If there is a will, then the courts will issue letters of administration or letters testamentary, which give the executor or administrator the power to administer the estate.
If the letters provide for an independent administration or an independent executor, then there won’t be a lot of court interaction at that point, and step four will begin. This step involves cataloguing the assets and pulling together all the property, real estate, bank accounts, life insurance policies, stocks, bonds, heirlooms, furniture, etc. Conversations will be had with the heirs in the will or under intestacy rules regarding who inherits which assets.
The fifth step is for the administrator of the estate to notify all creditors of the probate process. This can be done via a general notice in the newspaper or direct notice to secured creditors. Creditors have a right to receive their final payment from the estate. Secured creditors must be given letters which contain specific details and adhere to the requirements contained in the statutes.
The sixth step is to resolve any remaining disputes (usually with the help of an attorney) once all of the assets have been pulled together and distributed to the heirs. The seventh step is to complete and submit the closing paperwork, which is essentially a final inventory showing that everything has been distributed. At last, affidavits will be collected from each person who received something from the estate, at which point the estate will be empty and closed.
Can Someone Realistically Try To Navigate Probate On Their Own Without An Experienced Attorney?
It is certainly possible for individuals to navigate the probate process on their own without the help of an experienced attorney. There are lots of self-help books and resources for doing this with small estates. For instance, on the Travis County probate website, Judge Herman has posted a short form (https://www.traviscountytx.gov/images/probate/Docs/sm-estate-affidavit-checklist.pdf) containing specific instructions for navigating the probate process for small estates. For very detailed, very complex estates, we would not advise that people try to handle the process on their own. There are simply far too many places where people can become trapped and make costly mistakes.
How Long Does It Generally Take To Go Through The Probate Process In Texas?
The typical probate process involving a valid will in Texas takes approximately six to nine months. When there is no will and heirship must be proven, it can take up to two years. Ultimately, it will depend on how easy it is to locate disinterested parties who can testify, and whether or not there are any disputes.
For What Reasons Would A Probate Be Litigated?
Litigation can occur when there are unhappy heirs who fight over everything. This can sometimes happen when there are siblings or half-siblings who were born after the will was written, or when there are previous marriages which weren’t properly dissolved.
In today’s age, mixed families and second marriages involving separate property are common. Texas is a community property state, which means it is presumed that the property is equally owned by both spouses. Separate property belonging to one spouse may go to that spouse’s children, whereas community property might go equally to each spouse’s children. This can lead to hurt feelings and disputes.
There are innumerable reasons to end up in litigation, but it typically happens when someone feels as though property wasn’t specified or categorized correctly. I once handled a case that involved two siblings who detested each other; every action that each sibling took was done out of spite, and they each ended up hiring their own attorney. In situations such as these, probate is particularly costly and time-consuming.
For more information on Steps In The Texas Probate Process, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (512) 766-6082 today.
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