We get this question often. Probate usually involves handling someone’s affairs after they have died. The property of a person is called an “estate.” In “Probate” a person will handle the affairs of a deceased person. Sometimes, this requires the use of a court order.
An “estate” is a legal term meaning “the property of.” For example, the Estate of Joe Smith = the Property of Joe Smith. There is confusion, as the term may be misused. For example, if Joe Smith had a lawsuit pending when he died, people may assume “the Estate needs to finish the lawsuit.” This is not correct, because “the Estate” is not a legal entity (such as a corporation). The Estate of Joe Smith (i.e. “the Property of Joe Smith”) cannot sue—it’s just property. There needs to be a personal representative who can act on behalf of the Estate.
A personal representative of an estate is an individual who is authorized by a court to act on behalf of a deceased person. In Texas, there are a few different kinds of personal representatives. The most common is an “executor”, followed by an “administrator”.
An executor (male or gender neutral) or executrix (female) is a person appointed in a Will to handle the affairs of the person after death. After death, the executor/executrix will file an application with the appropriate court (typically a probate court) and ask the court to “probate the will.”
Some states have complex and burdensome probate systems. Texas has a rather simple probate system. With proper estate planning, probate can be a simple and direct approach to handle one’s estate.
A Will is a specific legal document directing where you want your property (called your “estate”) to go when you die. You can appoint someone to handle the affairs (called an “executor”) and you can ask that the executor act without court supervision (called “independent”) or require court supervision (called “dependent”). Most Wills in Texas call for an independent executor. A Will in Texas has specific requirements.
Probating a Will is the process in which one takes the Will of a deceased person to an appropriate court (typically a probate court) and asks the court to rule that the person who executed the Will is deceased, such Will is valid, and for the court to take further action as necessary.
Letters Testamentary is a fancy way of saying that someone died after executing a valid will, and a Court appointed an executor to act on behalf of the deceased person’s estate. The Court will issue a special order called “Letters Testamentary.”
In Texas, the process to probate a will is typically as follows:
