The Probate Process

Rules of Probating

The process of proving the validity of a handwritten or typewritten (formal) Will in court is known as Probate.  This process must generally take place withing four years after death. When Probating a Will it must be established in court that the Will meets the requirements of execution and the Will was must not have been canceled or revoked. Unless a Will is "self-proved," proof of a handwritten Will requires the testimony of two witnesses to the testator's handwriting and proof of a typewritten Will requires the testimony of one of the attesting witnesses. A self-proved Will has a specific form of affidavit attatched containing certain required statements which is executed before a notary public at the time the Will is signed or anytime thereafter but must be before the testator dies. A Will that has not been proven in court is denied Probate. In this event, the deceased's estate passes to his or her heirs as if they died without a Will.

Administration of The Estate

After proving the validity of a
Will in court, the next step in the Probate process is the administration of the estate. Estate administration is the management and settlement of an estate by a personal representative  approved by the court. Administering the Estate involves the following steps:


1. collection of the decedent's assets;
2. payment of debts and claims against the estate;
3. payment of estate taxes, if any;
4. determination of heirs if the decedent died without a will; and
5. distribution of the remainder of the estate to those entitled to it.

 

If one has a Will that appoints a person to take care of these duties, they are called an executor.  If a person dies without a Will or does not name an executor to administer the estate, the court will appoint someone ,called an administrator, to take care of the above listed duties. Any appointed executor or administrator must be approved by the court and has legal obligations and duties to the court and those who receive property from the estate.

Types Of Administration

There are several different ways of administering an estate in Texas. Three of the most common are Independent Administration -administration free of court supervision, Muniment of Title, and Small Estate Affidavit. When drafting a Will one generally uses Independent Administration by appointing an executor for the estate.  Once an independent executor or administrator is approved and an inventory of the estate's assets has been filed with the court, the executor or administrator can proceed with
taking care of the administration of the estate without any further court involvement or supervision. Hence, independent administration avoids all costs and delays that can come with court-supervised estate administration. If there is no need for an executor or administrator of the estate and the only reason for Probating a Will is to clear title to
property, a Will can be admitted to probate as a muniment of title. This is normally used when there are no debts of the estate and no actions that require an executor or administrator. A Small Estate Affidavit can be used if the value of the estate, excluding the homestead, exempt personal property, and nonprobate assets, does not exceed $50,000, and no formal administration is necessary
if the heirs file an affidavit with the
court showing that they are entitled to receive the property of the estate.

© 2021 by John T Montgomery

Attorney At Law