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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.

The Probate Hearing

After the waiting period, the court will hold a hearing.  Your lawyer schedules this hearing based on the court's available hearing dates. These hearings are generally held one or two days a week in many courts with several hearings scheduled back to back.  Your hearing will most likely last about five minutes unless there is something very unusual.  At hearing, the lawyer will ask the witness (usually the executor) a number of routine questions about the deceased person and their Will.  At the conclusion of the hearing, the judge will sign an order admitting the Will to probate and authorizing the issuance of "Letters Testamentary."  The Letters Testamentary are the official document reflecting the executor's right to serve as executor. After the hearing, the witness will sign a written version of his or her testimony and then take an oath to faithfully execute the duties of the executor.

 

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