Why do I need to probate a will?
In order for the wishes of the deceased to be honored in Texas, the formality of submitting the will for probate is required to give the independent executor the powers under the will to carry out those wishes. The terms of a will that has not been probated cannot be given legal weight unless the judge has declared the will valid. An individual who has been appointed the independent executor in a will has no legal standing in Texas to deal in matters of the estate unless the Will has been “admitted” and the court has appointed the executor.
Why do I need an attorney to probate a will?
Under Texas law, individuals asking to represent an Estate through letters testamentary, letters of administration, determinations, and guardianships must be represented by a licensed attorney. The only time an applicant may proceed in probate court without an attorney is when they are the sole beneficiary.
What is involved in probating a will?
After the will is filed with the county clerk with the appropriate application to admit the will, the case is assigned to a court, and a hearing is set.
Who can serve as an executor of a will?
If a Will designates an executor they are presumed eligible unless they do not meet the moral eligibility.
What can I expect at the probate hearing if I am being appointed an independent executor?
At the hearing, you will attend with your attorney and stand before the judge, swear to the truth of your statements made to the judge and answer truthfully the questions that your attorney or the judge may ask of you. Then if the judge hears no objections and finds all of the documents to be in order, the judge will sign the order which appoints you as executor, either independent or dependent. Then you proceed to obtain your letters testamentary?
What are “Letters Testamentary?”
It is a court document that attests to the fact that the person named in the Letter was named in the Will to act on behalf of the dead person's estate and has met the statutory requirements.
- a court procedure by which a will is proved to be valid or invalid. Must be filed within four years of the date of death. Affidavit of Heirship - When the deceased left no will, this affidavit describes and swears to the names of heirs to a deceased person in order to determine who is entitled to any interest in real property of the deceased's estate. The affidavit states that the deceased died without leaving a written will, that the deceased has no unpaid debts, and that there are no unpaid estate or inheritance taxes. Once it is prepared and sworn to in the presence of two witnesses and a notary, the Affidavit is filed in the county records where the property is located. From this point, no deed is required to convey property from the deceased's estate to those heirs listed in the Affidavit.
Small Estates Affidavit
- Similar to an Affidavit of Heirship but only applies to the deceased's homestead and bank accounts which are valued at under $50,000.
Declaration of Heirship
- A Court procedure for a court to determine any and all heirs of owners if they are not immediately known.
Probating the Will as a Muniment of Title
- A judicial proceeding which enables the filing party to enter a Will to be adjudicated solely for the purpose of conveying real property. The filing party will not be named an executor. In order to enter a proceeding for a Will as a Muniment of Title, there should be no unpaid debts except for those secured by a lien on real estate.