Probate

What is probate?

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.

What is an “estate”?

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.

What is a personal representative? 

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”. 

What is an executor? What is an executrix?

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.”

Why do people talk about “avoiding probate”?

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.

What exactly is a Will?

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.

What does it mean to “probate a Will”?

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.

What are “Letters Testamentary”?

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.” 

What is the probate process if someone dies after executing a valid will?

In Texas, the process to probate a will is typically as follows:

1. A person, typically the executor, will file an application to probate with the appropriate court (typically a Texas Probate Court in the county where the deceased lived).
2. A local ad is taken out in the newspaper, announcing that the will has been filed for probate for a specific time period
3. After the time period lapses, the attorney will ask the court to set an appointment (called a “hearing”) in order to “prove up” the Will.
4. At the hearing, the attorney will ask the person who applied to have the Will probated (called an “applicant”) various facts about the deceased, the Will and the family.
5. The judge issues an Order declaring the person deceased, declaring the Will as valid, and in most cases, appointing the executor as the person in charge of the deceased person’s estate.
6. The executor would then take an Oath (typically administered in the probate court), and then file such Oath with the county clerk, who issues Letters Testamentary.
7. The executor would then use the Letters Testamentary to collect the assets of the estate, pay estate creditors and distribute estate property to the people designated in the Will.