Our Firm is proud to offer Probate services to our clients and their loved ones. Please find some general information below regarding the Probate process in Texas and commonly asked questions that we receive in our office.
What should I do when my loved one passes away?
Losing someone is a terrible thing. However, there are a few tasks that must be handled without delay. The following list will get you started prior to calling your probate attorney.
- Begin funeral and burial arrangements
- Obtain several copies of the death certificate which can be obtained from the Texas Bureau of Vital Statistics
- Locate and gather important documents such as the Will, any Trusts, Stocks, Bank Account Statements, and Insurance Policies
- If your loved one was receiving Social Security Benefits contact the SSA at 1-800-772-1213 and advise them of their passing
- Notify the Life Insurance Company of death
- Contact the Executor named in Will
- Contact the Trustee named in the Trust if one was created
- Contact the Administrator of your loved one’s pension plan
- Notify the bank where accounts are held
- Notify all credit card companies
- Before paying medical bills, verify all insurance and Medicare benefits have been applied
What is Probate?
Probate is the orderly process of winding up the business affairs of a person who has passed away. The Court determines whether a testamentary document is the true last and valid Will of a Decedent through the completion of certain requirements. Probate assets are assets controlled by the Decedent’s Will and/or estate, including assets titled in the Decedent’s name without a designated beneficiary. The successful completion of probate distributes probate assets amongst beneficiaries, creditors, and any others with a valid interest in a Decedent’s estate.
What if I cannot find the original Will, but only a copy?
The Texas Probate Code does allow for a copy of the original Will to be probated in the case of a lost Will. Texas Probate Code §§ 81(b) and 85. But this is a difficult and expensive process. There is a presumption that the Testator (person who wrote the Will) revoked it. Thus, a judge may not always admit a lost Will to probate.
How long do I have to probate an estate?
Ordinarily, an application to probate a Will must be filed within four (4) years of the date of death of the Decedent. Letters Testamentary or Letters of Administration cannot be issuedmore than four (4) years after the date of death of the Decedent.
Everyone says I need Letters Testamentary, what are those?
Letters Testamentary are official documents issued by the Court authorizing the Executor to act for the estate. They are proof to others that the Executor has been qualified by the Court.
Timeline for Probating a Simple Estate in Texas
- Find the original Will.
- File the original Will with an Application for Probate of Will and Issuance of Letters Testamentary.
- The County Clerk issues citation and also posts notice at the courthouse that an Application for Probate of Will has been filed.
- After notice has been posted for the requisite time, a hearing is scheduled to ask the Court to admit the Will to probate and to issue Letters Testamentary.
- At the hearing, the named Executor provides the Court with facts of death and proves up the validity of the Will. If the Will is self-proven, the Executor will be the only one to give testimony. In Texas, a Will is self-proven when an affidavit containing specific language is attached to the Will, which enables the Will to be proven valid without the necessity of witness testimony. However, if the Will is not self-proven, witnesses will be called to testify at the hearing as required by law. Written testimony of the Executor’s oral testimony (and any witnesses) is prepared before the hearing, and that written version is signed in the presence of the judge or clerk immediately after the oral testimony.
- After the judge sings the order admitting the Will to probate, the Executor takes the Oath to perform his or her duties front of the judge (or the county clerk) and receives Letters Testamentary.
- A Notice of Creditors is prepared and sent to a newspaper for publication with in one month after receiving Letters Testamentary. The newspaper will send a copy of the notice that was published and will execute a Publisher’s Affidavit verifying that the notice was properly published by law.
- The Executor provides and sends notice that Letters Testamentary have been issued to creditors with liens against real or personal property of the estate within two months after receiving Letters Testamentary.
- The Executor sends certified letters to each beneficiary named in the Will to provide a copy of the Court order admitting the Will along with a copy of the Will not later than 60 days from the date the judge signed the order admitting the Will to probate.
- The Executor prepares and files a sworn affidavit with the Court stating that the notice to beneficiaries was completed. This affidavit is filed no later than 90 days from the date the judge signed the order admitting the Will to probate.
- The Executor prepares an Inventory, Appraisement, and List of Claims that shows the assets of and claims against the estate and the value of each asset, as of the Decedent’s date of death. This inventory will be filed with the Court no later than 90 days from the date the judge signed the order admitting the Will to probate, or if the inventory has been delivered to all estate beneficiaries an affidavit stating that fact in lieu of filing the inventory in the public records.
- A final federal income tax return (form 1040) for the year the Decedent died is due by April 15th of the following year.
- Federal estate taxes may be due for larger estates.
- If any creditor makes a claim on the estate, the Administrator must, within 30 days, either accept or reject the claim or any part of it.
- Creditors are lined up in the classes set out by the Texas Probate Code and paid in order of their class.
- The estate is disbursed as provided for in the Will.
- New titles are issued for cars, boats, and other titled property.
If you are needing assistance with probating an estate in Leander, Cedar Park or elsewhere in Williamson County or Travis County, Texas, please contact us to schedule a time to come in and discuss the process further.