#1 What is probate?
For a person who has passed away, probate is the legal process to document and formalize the transfer of assets and becomes the tool through which their assets are distributed to their heirs. Those heirs are determined based on the statute or based on their will. Probate is a lawsuit that is opened up to provide for the transfer of these assets to the appropriate people. In theory, title vests immediately in the heirs, sometimes called the beneficial title. What does that really mean? It means the that the moment somebody passes away, the person who is supposed to get the asset immediately receives that asset or the right to it, subject to the debts and claims of the estate. In essence, the probate process becomes the legal process to put the legal title into that beneficiary’s name. The probate process is the same throughout the state of Texas, however different counties have slight variations in court proceedings. Webb County requires oral testimony in addition to the written proof of death to “prove up” the case and the courts of law hear probate matters. In Bexar County, no testimony is taken when proving up the case, only the proof of death is entered in the county’s two dedicated probate courts. In some rural counties, like Zapata County, the County Judge presides over the probate.
#2 What is the probate process?
The Probate Process involves filing an application for probate along with an original death certificate. If there is a will, the original will would need to be filed as well. In Texas, the application for probate has to be posted for ten (10) days. After those ten (10) days expire, the court would provide a date for a hearing. At that hearing, testimony would be required to “prove up” who that the person actually passed away and who the heirs and surviving family members are. The person who will be appointed as the executor administrator would proceed to take the oath of the executor or administrator. They would also file what is called a proof of death which documents the testimony that that will be given. In some Texas counties, they don’t require that testimony be given orally. After filing the proof of death and providing testimony, the executor or administrator will begin making necessary notifications. Heirs and all of the beneficiaries in the will need to be notified as well as the executor if they are not the applicant. The attorney will have thirty (30) days to file a notice to creditors and have that notice published in the local newspaper. They will also have ninety (90) days from the date appointed and oath taken to proof of death to prepare an inventory. In some situations, the inventory would be filed with the court and approved by the court. Alternatively, it could be given to the heirs and the executor would provide an affidavit stating that the inventory was prepared and delivered to the heirs, also called an affidavit in lieu of inventory. That affidavit would then be filed with the court records. After all of the inventory has been approved and all debts of the estate have been paid, the assets can then be distributed.
#3 How does a probate case in Texas get started?
Application to Admit a Will to Probate: In order for the case to start and assuming we have a will, the attorney first creates a document called an application to admit a will to probate. It requests to appoint an executor to the court. This document asks the court to go ahead and take jurisdiction of the probate estate. This document will then be posted by the County Clerk’s office for ten (10) days. (To find out where your County Clerk posts an application to admit a will to probate, consult with the County Clerk’s office in your county.) The management and delivery of various notices to different people and beneficiaries should also be handled by your probate attorney.
Proof of death & other facts This document will outline the testimony that the executor or applicant will be providing to the court at the initial hearing is called the proof of death & other facts. It will give details of when the person died, date of birth, if they were married and if they had children. If they did not have children, the document would outline who are the heirs, since there were no children. Your probate attorney will take care of all of this for you.
Oath of Executive/Administrator
The oath of executive/administrator is an oath made by the executor or administrator in order to confirm their right to administer the estate (either appointed by will or intestacy), that the information provided in the application is true and correct and that the estate will be distributed according to the law and the wishes in the will. By taking the oath, the executor or administrator promises to carry out diligently and with a fiduciary responsibility, the obligation to follow what either the will says (if there is a will) and collect the assets and distribute them based on what the will says. In the event that there is no will, they will need to collect and distribute the assets based on what the statute says for intestate succession. They will need to identify separate property and community property in order to determine how those assets are to be divided. This oath will be prepared by the attorney and presented to the court. To summarize, you should expect your probate attorney to prepare any other documents that are necessary. After the inventory is prepared, they will prepare a closing affidavit. They can also prepare transfer documents in order to transfer real estate from the decedent to the actual to the beneficiaries. They can also prepare different transfer documents to transfer financial instruments.
#4 The application to probate has been submitted…what now?
The application to probate clarifies some important details:
· Identifies who is asking for the will to be probated or who is asking for the probate to be opened for the estate, if there is no will.
· Defines who are the beneficiaries or the heirs.
· In the event that there is a will, it alludes to the fact that the Will was properly signed and that it was properly witnessed.
· States if there will be any gifts to a charity or gifts to a state governmental institution from the estate.
In these instances, a notice will be given to the attorney general for the state of Texas. In Texas, to make sure that the listed beneficiaries are properly being taken care of and that the will is followed.
Identifies who the executor will be. The executor does not have to be the same person as the applicant although it typically is the same person. In the case of intestacy (no will), it will identify the percentages of the beneficiaries based on the what the state statute says.