The Probate Process
The Texas probate process can be very complicated depending on several factors, the most important of which is whether the deceased person left a valid will. Most wills, and particularly any attorney-drafted will, name an executor and direct that the executor will serve independently and without a bond. If this is the case, then the probate process is relatively straightforward (assuming there is no contest of the Will). On the other hand, if a person dies without a will, if none of the named executors can serve, or if the Will does not have the correct language naming an independent executor, the process can be more complicated.
However, what most people think of when they think of probate – is an independent administration. In a typical scenario with a will and an independent executor, the probate process for an independent administration follows these steps.
Find the Will
First, the Will must be located. Hopefully, the deceased left the original of the Will in an obvious place, and it can be located easily. Many people keep their Will in a safe deposit box. If this is the case, someone must have the authority to access the safe deposit box to get the Will out, or the bank will not let anyone open the box. That is why most attorneys advise against leaving a will in the safe deposit box. There is a court process to access a safe deposit box to look for a will, but this adds another layer of complexity to the situation.
Hire a Lawyer
Next, it is time to see a lawyer. While some courts will allow a non-lawyer executor to represent themselves in a probate matter, it is against the law for a non-lawyer to represent him or herself as an executor. This is because the executor acts as the representative of the estate and the beneficiaries under the Will. Moreover, a layperson may have trouble completing all the legal filings without the knowledge and experience of a lawyer.
File the Application
Your lawyer will prepare an application for probate. This application informs the court of certain facts about the deceased person and the Will. The original Will is filed at the courthouse along with the application. Once filed, the court clerk will issue a notice that the Sheriff must post at the courthouse door. This notice must remain there for ten days and then be returned to the clerk before having a hearing before the probate court.
Within 30 days after receiving the letters testamentary, the executor must publish a notice to creditors in a local newspaper. Your attorney will handle this for you. The notice lets creditors of the deceased person know where to file their claims to get paid. The notice must be filed whether the deceased had creditors or not. Additionally, if there are any secured creditors, these must be notified by certified mail that an executor has been appointed. The executor must send a certified notice of the probate to any person or charity named as a beneficiary in the Will. The executor must file proof that this was done with the court.
Within 90 days of qualifying, the executor must file an inventory of the deceased's property with the court. The inventory lists all the property that is passing under the will only. So, for instance, life insurance, retirement plans, some joint accounts, and many other properties are designed to pass directly to a named beneficiary and do not need to be listed. Moreover, this inventory does not need to include every spoon the deceased owned. Things like household goods are grouped together, and only major items are listed separately. In some cases, the executor may file an affidavit with the court that states the inventory was prepared and delivered to the beneficiaries in lieu of filing the inventory with the court.
Claims of Creditors
If any creditors of the deceased file a claim, the executor must evaluate the claim to determine if it is valid. The executor must pay all valid claims out of the property of the estate unless the estate does not have any property that is subject to creditors' claims. Some of the estate property may be exempt from creditors' claims. The claims process can be very complicated if there are many debts.
Distributing Property to Beneficiaries
Once the creditors have been paid, the executor distributes the property of the estate to the beneficiaries named in the Will. This may take the form of writing a check, delivering personal property, or giving the beneficiary a deed. In Texas, this is often the end of the probate process. An executor can file with the court to close the estate. However, in Texas, it is very common just to leave the estate open indefinitely as closing the estate is not required by law.