Probate Law


Probate concerns the disposition of the assets of a person who has died (the decedent).  Also thrown into this mix is the area of guardianships,  which is a procedure established to appoint someone in your stead  when you cannot take care of your own affairs because of some form of mental or physical deficiency.

With a little planning, however, guardianships might be avoided.  Powers of Attorney, in most cases, eliminate the need for guardianships.

Probate of a Will - The Will of a deceased person is the controlling document relative to his or her remaining worldly affairs.  It will name the Executor (male) or Executrix (female) who will be in charge of administering whatever provisions the decedent  has made in the Will.  The person named in the Will as the Executor or Executrix will make application to the court for the Will to be admitted to probate as the decedent’s Will and for him or her to be appointed in that capacity, as the representative of the decedent’s estate. Once the Will is admitted, the Executor/Executrix must take an Oath accepting the position.  Once the Oath has been administered, then the  Executor or Executrix  will be issued  Letters Testamentary which are the letters from the court  telling the world that this person now speaks for the decedent’s estate.  The Executor or Executrix will have to file an inventory of the estate’s assets.  It is the job of the Independent Executor or Executrix to collect all of the decedent’s assets,  pay the decedent’s debts and distribute the remaining assets to the persons named under the decedent’s Will. If the estate is a taxable one, then the Executor will also have to see to it that a U.S. Estate Tax Return and a Texas Inheritance Tax Return are prepared and filed within nine (9) months of the decedent’s death.  If a person dies in 2008 and that person’s gross estate has a value of less than two million dollars, then the estate is not a taxable one and no death tax returns would have to be filed.  Of course, the Executor or Executrix usually files the decedent’s final income tax return as well. 

Disclaimer - This is a document which can be signed by a person who wishes to forego receiving a gift under a Will and can be a valuable tool. 

Independent Administration - If the decedent added specific language in the will, the Executor or Executrix will be allowed to act without the oversight of the court, once the Will has been admitted to probate and the person has qualified to serve as the representative of the estate.  This does not mean that the representative can do what ever he or she likes, only that the court will not be watching over his/her shoulder.  The Executor or Executrix  is bound by the highest fiduciary duty to do exactly what the Will says should be done.  Usually, when there is an independent administration, there will also be a waiver of the bond,  which the Executor would also have been required to “ put up” to ensure that  he/she will not be self-dealing with the estate’s assets.  

Dependent Administration - If the proper language is not in the Will, the court will set up a dependent administration, unless the devisees agree to allow the estate’s representative to serve independently of the court’s supervision.  A dependent administration is where the court must approve every step the administrator takes.  It is very time consuming and fairly costly, but there is a form of security when this method is used.  If a person dies without having made a Will, the estate will be administered as a dependent administration.

Determination of Heirshp - If there is no Will, then the court must determine who are the heirs at law of the decedent.  This is done through a proceeding called a determination of heirship.  Again, the process is fairly drawn out and can be quite difficult.  A witness must be found who can say essentially: “I knew this person all of his/her life and these are his/her children.”  Remember that when a 70- year -old person dies, it will take someone almost that old, if not older, to testify.

Affidavit of Heirship - In some situations, it is appropriate to have a family history – an Affidavit of Heirship – prepared and recorded in the Real Property Records of the county in which the decedent resided and in any other counties in which the decedent owned other real estate.  This can sometimes do away with the need to probate a Will, but the circumstances of its use are limited.

Ancillary Probates - When a decedent who is a resident of Texas owns real property in other states, it is usually necessary to have an ancillary probate in that state.  In those situations, the representative of the estate will either hire or  authorize us to hire an attorney in the other state or states to do what the laws of that state require to transfer ownership of that asset.  Some states require a small ancillary probate in their state, others allow the recording of authenticated copies of the Texas probate documents to be recorded in the county of their state in which the real property is situated.  Likewise, in the event that a non-Texas resident owns property in Texas, steps must be taken here, in Texas, to transfer Texas property.

Probate Litigation: A great professor of probate law once coined the following phrase: “No one brings as much grist to the mill as the little old lady who writes her own Will.”  Wills are very technical in nature because they can control from the grave when there is no opportunity to ask: “What did you mean?”  As a result, the very admission of a piece of paper entitled “Las Will and Testament” could be contested because of signatures not being correct, improper witnesses, handwriting with type writing.  It could also  be a question of the competency of the deceased at the time a particular Will was signed, or undue influence from outside pressures.

It is a sad truth that when money is involved, even some of the best families are fueled by the “Mom liked you best” feelings of childhood and the parties start a war.  When inequities are perceived, it is quite common for each party to have his/her particular point of view seen as the correct one utilizing the courts as their forum.

Estate planning will help to avoid the pitfalls. 


Texas Probate Code:  After you arrive at the Texas Probate page, select "Probate Code" from the Code drop down menu. (More)


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