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What is Probate?

While the term probate refers to various proceedings related to the administration of a decedent’s estate, typically the term is used to describe the court process by which a Will is reviewed to determine if the Will is valid and authentic.  Unlike many other states, in Texas, the “probate process” is relatively simple, quick, and cost effective when you have a valid Will in place.  So, what does it entail?

After your death, the first thing that your loved ones will need to do is locate your Original Will.  While it is possible to probate a copy of your Will, it is more timely and costly to do so.  It is extremely helpful for those who will need to locate your Will to have access to information regarding its whereabouts.  If your Will is held in a safe deposit box at a bank or other institution, then make sure that arrangements for access have been made with the institution.  If you store your Will in a home safe, make sure someone else has the code to access the safe.

Once the Original Will is obtained, the next step is to review it and determine who has been named Executor under the Will.  The Executor is the person who will “probate” the Will with the assistance of a qualified probate attorney.  With the assistance of an attorney, the Executor will file the “Application for Probate & Issuance of Letters Testamentary,” along with the Original Will, with the clerk in the appropriate county (typically the county where the decedent resided and was domiciled on the date of his death).  After the Application has been on file for ten (10) days, you may request a hearing on your Application.  

During a typical probate hearing, where no additional proofs to validate the Will are necessary, the Executor is the only person who provides testimony.  While the testimony is formal in the sense that it is sworn to and provided for in the record, in most counties in Texas, the actual process is very informal.  The Executor and her attorney generally stand right before the judge at the bench during the question-answer portion.  When the testimony has concluded, the judge signs the Order on Probate and sends the Executor to the clerk’s office to take her Oath as Executor and to receive “Letters Testamentary.”  

What are these “Letters Testamentary?”  It is a one-page document that is created and signed by the Clerk verifying the identity and authority of the Executor.  The Letters provide the Executor with the power and authority to conduct the business of the estate.  Prior to obtaining Letters Testamentary, the Executor has no authority to act on behalf of the estate.

What does it mean to conduct the business of the estate?  Simply put, it is the Executor’s job to gather the assets of the estate, pay the debts, and distribute the remainder of the assets to the beneficiaries of the estate.  The Letters Testamentary allow the Executor access to bank accounts and other accounts that she otherwise would not have access to and may also grant other special powers to the Executor, including the power to sell real property.  In essence, with the Letters in hand, the Executor has the ability to act in the same manner as the decedent could have during life.

In order to wrap up the probate process in terms of court requirements, the Executor must submit a detailed inventory or provide an affidavit in lieu of inventory when there are no estate debts.  The inventory or affidavit in lieu of inventory must be filed within ninety (90) days of the Executor’s appointment, unless more time is granted.  It is not unusual to request an extension of time to file the inventory when there are hard to value assets or if an estate tax filing will be required.  Extensions are generously granted under most circumstances.  The inventory should list all of the probate assets.  Probate assets would include any and all assets that did not pass through a beneficiary designation, pay on death, survivorship agreement or outside of probate in some other manner.  All real property located in Texas should be properly identified, including any oil and gas interests.  If the Decedent owned real property in another state, an ancillary proceeding in that state may be required in order to transfer the property to the devisees under the Will.  While the Executor may still have many more administrative tasks to undertake before the estate is fully settled, the filing of the inventory is the Executor’s last official obligation with the court.

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