To file the probate application, one must first decide which court has jurisdiction and which court should handle the probate court. Once the court is selected, the next step is to submit the probate application.
The Probate Application under Texas Estate Law
After identifying the probate court that can hear the case, the next step is to file the application with the county clerk to start the probate process.
The application is the legal document that provides the basic information and requests that the personal representative be appointed. The contents of the application differ based on whether the decedent had a will or did not have a will and whether the probate will be handled as a dependent or independent administration.
At a minimum, the application should:
- Identify the decedent.
- State whether there was a will or there was no will.
- State where the decedent was domiciled at the time of death.
- State the date of death.
- Identify the property owned at the time of death and the approximate value thereof.
- Identify the decedent’s family relationships (i.e., marriage or divorce status, children, etc.) and heirs and their interests in the estate.
- Provide the name and information for the personal representative.
- State the reason why an administration is needed.
Once complete, the application is filed with the county clerk’s office that handles probate cases. The filing is made using one of several electronic filing services.
Upon receipt, the county clerk will assign a docket number to the case and record the record in the clerk’s records.
If there was a will, the original unstapled will should be included with the application. If there are multiple wills or codicils (which are written supplements to wills), they may also need to be included. If these documents are not provided with the application, they should be provided to the clerk within three days of the filing of the application.
If there was no will, a request for an heirship proceeding (described later) should be included with the application. Most probate attorneys combine the application and heirship proceeding into one filing with the clerk. There are several other requirements for the application. The document itself should be prepared by a probate attorney.
Citation and Service
The application must include citation language. The term “citation” means notice to those with an interest in the estate. The citation alerts all parties having an interest in the probate to appear in the case if they wish to do so. The county clerk will issue the citation pursuant to Texas Estates Code § 51.001.
The county clerk then issues a citation to all interested parties of the estate. The citation is served by posting at the county courthouse. The citation must state:
- that the application has been filed,
- the nature of the application,
- the decedent’s name,
- the applicant’s name,
- the time when the court will act on the application, and
- that any person interested in the estate may appear at the time stated in the citation to contest the application.
Notice of the application has to be provided to the heirs. Alternatively, the heirs can file an affidavit with the county clerk consenting to the application.
Scheduling the Hearing
Having filed the application and after the clerk has issued a citation and the citation return date has passed, the next step is to schedule the court hearing. Practices vary from court to court on how to schedule the hearing. But generally, this involves calling the assigned probate court and asking to be put on the court’s hearing calendar. Most courts have uncontested hearings on a set day or days of the week.
The Court Hearing for Admitting the Will
The court hearing to admit a will to probate is typically routine and short.
The person seeking to be appointed has the burden to establish the validity of the will and that the will should be probated. To meet this burden, it may be necessary to present records to the court. But in many uncontested cases, the primary evidence consists of testimony that is elicited by your probate attorney.
The testimony is taken in court and under oath.
The line of questioning typically includes the following questions:
Attorney: State your name for the court.
You: _______________.
Attorney: How were you acquainted with the decedent?
You: _______________.
Attorney: So you were familiar with the decedent’s family and living arrangements, correct?
You: Yes or that is correct or correct (just something in the affirmative).
Attorney: To the best of your belief, the decedent died on [Date] in [City], [Name of County] County, Texas, at the age of [Age], is that correct?
You: Yes or that is correct or correct (just something in the affirmative).
Attorney: The decedent was a resident of [Name of County] when he died, correct?
You: Yes or that is correct or correct (just something in the affirmative).
Attorney: And four years have not elapsed since the date of death and the filing of the application, is that correct?
You: Yes or that is correct or correct (just something in the affirmative).
Attorney: To the best of your belief, the decedent died testate and his will was signed on [Date of will], is that correct?
You: Yes or that is correct or correct (just something in the affirmative).
At this point, your attorney may show you a copy of the will and ask if you recognize the copy and signature on the will.
You: Yes, I recognize the will and the decedent’s signature.
Attorney: And to the best of your knowledge this will was never revoked, correct?
You: Yes or that is correct or correct (just something in the affirmative).
Attorney: No state, governmental agency of the state, nor the charitable organization is named by the will as a devisee, is that correct?
You: Yes or that is correct or correct (just something in the affirmative).
Attorney: After the date of the will, no child was born to or adopted by the decedent, is that correct?
You: Yes or that is correct or correct (just something in the affirmative).
Attorney: No marriage was ever dissolved after the will was made, is that correct?
You: Yes or that is correct or correct (just something in the affirmative).
Attorney: The decedent’s will names you to serve as the independent executor to act independently without bond or other security, is that correct?
You: Yes or that is correct or correct (just something in the affirmative).
Attorney: To the best of your knowledge, you are not disqualified by law from accepting letters testamentary or from serving as executor and are entitled to such letters and is the person named in decedent’s will, is that correct?
You: That is correct.
Attorney: You are asking this court to appoint you as the independent executor, to serve without bond, and to waive the appointment of appraisers, correct?
You: Yes or that is correct or correct (just something in the affirmative).
If all goes as planned, the judge will then admit the will to probate and agree to sign an order admitting the will to probate.
With most probate courts, the applicant is expected to provide the court with the order for the judge to sign.
Taking the Oath
The oath can be sworn to in court or by filing a sworn statement with the county clerk. Practices vary from one county to another.
The language of the oath reads something like this:
I, ________________, do solemnly swear that the writing which has been offered for probate is the last Will of __________________, so far as I know or believe, and that I will well and truly perform all the duties as Independent Executor of the will and of the Estate of ___________, Deceased.
The exact language varies by county. The county clerk will require the oath be filed prior to issuing letters testamentary.
Posting the Bond
Before a personal representative is appointed, the probate court may require a bond be posted. The bond helps ensure that the personal representative does not abscond with or mismanage estate property to the detriment of creditors and heirs.
A bond is not required if there is a will and the will waives the requirement of a bond for the person who is appointed. A bond is also not required for corporate fiduciaries who serve as the personal representative.
Absent an express waiver in a valid will or a corporate fiduciary, the probate court may require a bond be filed before it appoints the personal representative. Whether a bond will be required depends on:
- Whether there are unsecured creditors of the estate who will not waive the bond requirement
- Whether all of the heirs are willing to agree in writing to waive the bond requirement
- The practices of the probate court for the issuance of bonds
The probate court may also require a bond if there is a complaint filed alleging that the executor is wasting, mismanaging, or misapplying the estate and, as a result, either a creditor may probably lose the creditor’s debt or a person’s interest in the estate may be diminished or lost.
When required, the bond has to be filed with the probate clerk within 21 days after letters testamentary are issued or revoked.
The cost of a probate bond varies based on the amount that is the subject of the bond.
The probate court has the discretion to set the amount of the bond. The general rule is that the bond should be set in an amount to protect the estate and the estate’s creditors. If the personal representative is the only heir and entitled to all of the estate property, the bond can be limited to just an amount to protect the estate’s creditors.
There are quite a few bond companies that offer probate bonds in Texas. Rates vary widely, but generally, a bond of $10,000 may only cost $100; whereas, a bond of $1,000,000 may cost $3,000 or more. The bond company sets the rate based on the complexity of the estate, the credit, etc. of the personal representative, and the assets that are in the estate. It may turn out that even if the personal representative is otherwise qualified, they may not be able to serve if they cannot qualify for or afford to post a bond. This is why most wills specifically waive the requirement of a bond.
Once appointed, the personal representative can use estate assets to satisfy or to reduce the amount of the bond fees charged by the bond company. In other cases, the court may approve the use of estate assets to satisfy the bond company or to reduce the amount of the bond fees charged by the bond company.
The bond fees are usually due annually. This can encourage the personal representative to work diligently to close the estate.
Letters Testamentary
Letters testamentary give the personal representative the legal authority to administer the decedent’s probate estate. The letters are a legal document.
The letters provide proof of appointment and qualification of the personal representative of an estate and the date of qualification. They serve as proof of the personal representative’s power to act for the estate. For example, most banks and financial institutions require a copy of the letters before giving the personal representative information or access to the decedent’s accounts.
The letters are officially issued by the county clerk. The county clerk charges a small fee for preparing the forms. The personal representative will want to pay for 2-10 letters, as banks and other institutions will expect an original rather than a copy.
This concludes the first part of the probate court process. The process is similar, but more involved if the decedent died without a will.
Do you need an Experienced Probate Attorney to file letters of administration?
When a loved one dies, it can be difficult to know what to do next. One of the first things you may need to do is probate the will, which is the process of proving that the will is valid and administering the estate according to the instructions laid out in the will. If you live in Texas, you’ll need to follow the state’s specific probate laws.
An experienced probate attorney can help you through this process, ensuring that everything is done correctly and in a timely manner. They can also help if there are any disputes over the will or the administration of the estate. If you’re facing this process, don’t go it alone – contact an experienced Texas probate attorney today. (512) 273-7444.
Related questions
How do you know if probate is necessary in Texas?
If you’re the executor of a will in Texas, you may be wondering if probate is necessary. The answer depends on several factors, including the size of the estate and whether the deceased had any debts.
Probate is the legal process of administering a person’s estate after they die. The executor of the will is responsible for ensuring that all of the deceased person’s assets are distributed according to their wishes. In Texas, probate is often not required if the estate is small or if all of the deceased person’s debts have been paid.
If you’re not sure whether probate is necessary in your case, it’s best to speak with an experienced attorney who can help you navigate the process.
Do wills have to go through probate in Texas?
No, wills do not have to go through probate in Texas. Probate is a court-supervised process for distributing a deceased person’s assets. Wills are typically probated when the deceased person has left behind property or other assets that need to be distributed to beneficiaries. However, if all of the deceased person’s assets are transferred to beneficiaries outside of probate, then probate may not be necessary.
There is no general requirement that all wills go through probate in Texas. However, if the decedent dies and leaves a will, you can only implement its provisions through probate.
What determines if a will goes to probate in Texas?
There are a few different factors that determine whether or not a will goes to probate in Texas. First, the court will look at whether or not the deceased person had any assets in their name at the time of their death. If the deceased person had any assets in their name, then the court will likely order that those assets be put into probate. Additionally, the court will also look at whether or not there are any debts owed by the deceased person. If there are any debts owed, then the court may order that those debts be paid out of the estate before it is distributed to the heirs. Finally, the court will also consider whether or not there are any disputes among the heirs about who should inherit what from the estate. If there are any disputes, then the court may order that the estate go through probate so that those disputes can be resolved.
What does probate a will mean?
When a person dies, their estate must go through the probate process in order to be legally distributed to their heirs. Probate is the legal process of proving the validity of a will and appointing an executor to carry out the deceased person’s wishes. In Texas, the probate process starts with the filing of a petition with the court.
If the deceased person left a valid will, the court will appoint an executor to carry out the terms of the will. The executor is responsible for gathering the deceased person’s assets, paying any debts and taxes, and distributing the remaining assets to the beneficiaries named in the will.
If the deceased person did not leave a valid will, the court will appoint an administrator to handle their estate. The administrator is responsible for gathering the deceased person’s assets, paying any debts and taxes, and distributing the remaining assets to the deceased person’s next of kin according to Texas law.
The probate process can be complicated and time-consuming, so it’s important to seek legal advice from an experienced attorney if you are appointed as an executor or administrator.
How long does probate take in Texas?
The probate process in Texas can take anywhere from a few months to a year or more, depending on the size and complexity of the estate. The first step is for the executor to file a petition for probate with the court, along with the deceased person’s will. Once the petition is filed, the court will issue an order appointing the executor and setting a date for the hearing on the petition. At the hearing, the executor will present the will to the court and provide proof that all interested parties have been notified of the probate proceedings. After reviewing the will and approving it, the judge will issue an order admitting the will to probate and appointing the executor.
Once appointed, the executor’s duties include collecting all of the assets of the estate, paying any debts and taxes owed, and distributing the remaining assets to the beneficiaries. The executor must also keep accurate records of all transactions and file periodic reports with the court. The entire process can be complex and time-consuming, so it’s important to choose an executor who is up for the task and has the time to devote to it.
