Texas Probate Guide: How to Probate a Will in Texas

August 24, 2023

This article is for educational and entertainment purposes only. This is not legal advice and should not be relied on as such. Every case is different. Consult a licensed professional in your state. Viewing this website or its content does not create an attorney-client relationship with Lyda Law Firm or any of its lawyers.

Guide by Texas attorney Maria Ortiz.

Enduring the loss of a loved one can be difficult enough without the added stress of trying to navigate the probate court system. In this post, we provide a general overview of the required steps to probate a will in Texas

What is probate? 

Probate is the legal process in which a court renders a decision as to the validity of a deceased person’s will and appoints an individual to serve as the personal representative of the deceased person's estate. The probate process and will requirements vary by each state. 

Do I need an attorney to probate a will in Texas? 

Texas law requires an individual to be represented by legal counsel when seeking to be appointed as the personal representative of an estate. Failure to obtain legal representation could be considered the unauthorized practice of law. 

While there are limited circumstances where an individual may represent themselves in a probate proceeding, it is best to consult with an attorney to determine whether this is appropriate for your matter. 

Eight Stages of Probate

The probate process can be confusing and overwhelming, especially if you are unfamiliar with the process. Generally, the process can be broken down into eight main stages.

1. Initial Consultation

The first step towards probating a will is to gather all of the relevant information, including information about the deceased person (or “decedent”), information about the person seeking to be named the personal representative, a Certificate of Death for the decedent, and the decedent’s original will. 

Once you have gathered this information, you should consult an attorney that practices probate law in your area to assist you with the next steps. 

2. Probate Application

Once you have hired an attorney, your attorney will then prepare a document known as an Application to Probate the Will. Once prepared, this Application will be filed in the county of relevant jurisdiction. Usually, this is the county in which the decedent resided at the time of death. Tex. Est. Code sec. 33.001(a)(1) 

Once the application is filed, the original will of the decedent must be delivered to the courthouse within three days of filing. Tex. R. Civ. P. sec. 21(f)(12)

After your attorney has filed the application, you will need to wait approximately two weeks before your attorney is able to schedule a hearing. During this period, the courthouse will post notice at the courthouse informing the public that a probate application has been filed relating to  the decedent’s estate. 

After the required waiting period has passed, your attorney will contact the court to set a hearing on the application. 

3. Attend Hearing on Probate Application

Before you are able to step into the role of executor of the estate, the court must first grant your application and issue you Letters Testamentary. Letters Testamentary grants you authority to essentially step into the shoes of the decedent and take action as if you were the decedent. 

To receive Letters Testamentary, you must first attend a court hearing and testify to put certain facts on the record. This testimony will primarily pertain to facts regarding four main issues: (1) whether the will is timely probated; (2) whether the will is valid under Texas law; (3) whether the court has jurisdiction over the estate; and (4) whether the named executor is qualified to serve as executor. 

While these are the main issues that are usually covered at probate hearings, each case is different. To be sure, it is best that you consult with your attorney

4. Post Hearing Requirements - Receive Letters Testamentary

Once the judge submits an order granting your Application, you must prepare at least two additional filings before receiving Letters Testamentary. 

First, you will need to prepare and sign a Proof of Death and Other Facts. This document reiterates your testimony regarding the decedent’s death, the validity of the will, jurisdictional issues, and your qualification to serve as the estate’s personal representative. 

Second, you will need to sign  and notarize an Executor’s Oath. By signing the document, you are acknowledging that you are aware of your duties as the appointed executor and agree to uphold these duties and perform them in good faith. 

Once the court receives both of these documents, the court will issue Letters Testamentary. Note that you can receive multiple copies of these Letters. 

Keep in mind that you will need to deliver these copies to all bank account holders, title companies, and other property managers for property in which the decedent owned. For this reason, it is best that you at least request 5 copies of Letters Testamentary. 

5. Notice and Inventory 

Once you have received Letters Testamentary, you have successfully opened an administration of the decedent’s estate. You will then enter the “Notice and Inventory” phase. 

During this phase, you will need to provide statutory notice to creditors and beneficiaries of the estate. You will also need to begin preparing an Inventory, Appraisement, and List of Claims, which will be due within 90 days from the date you were issued Letters Testamentary. 

First, you will need to provide a notice to creditors. This is a simple one-page notice that will be published in a newspaper of general circulation in the county in which the estate is being probated. 

Once the notice is published, you should receive a signed and notarized publisher’s affidavit as well as a copy of the published notice. You will need to file this signed affidavit and copy of the published notice with the court. 

Second, you are required to provide written notice to all known secured creditors. Rather than providing a general notice through publication,  this notice will need to be mailed directly to the creditor.

Third, you may provide notice by mail to all unsecured creditors. While this step is not required, it could affect the time frame in which unsecured creditors are able to present a claim against the estate. To be sure, it is best to consult with your attorney to determine the best method for submitting a notice to unsecured creditors. 

Lastly, you will need to submit an Inventory, Appraisement, and List of Claims within 90 days of being issued Letters Testamentary. 

The inventory should include a description of the estate’s real property located in Texas as well as the estate’s personal property, and state the fair market value of this property. Additionally, the inventory must specify which property is community property and which property is separate property. 

Meanwhile, the list of claims should include a complete list of all property or funds due and owing to the estate as well as the name of the debtor. 

6. Resolve Claims 

Once you have provided notice to creditors, they will be allotted a specific period of time to present their claim, based on their creditor status. 

Part of an executor’s duties include resolving all claims that are timely presented. The executor can choose to either pay off the claim using the estate’s assets, or contest the claim if the executor has a good faith objection to the validity of the claim. 

7. Distribute Assets 

Once all claims of the estate have been settled, the executor must then distribute the assets in accordance with the terms of the decedent’s will. 

It is important to ensure that title to all assets transfer, rather than just possession of the asset. For example, if an executor distributes a vehicle to a beneficiary, the executor should ensure that the vehicle’s title reflects this transfer. 

8. Close Administration 

Finally, once all estate claims have been settled and all assets distributed, the executor may close administration of the estate. 

Let us guide you through the probate process. 

Have you been named executor of an estate or are interested in learning more about the probate process? Contact the Lyda Law Firm for a free initial consultation. 

This article is for educational and entertainment purposes only. This is not legal advice and should not be relied on as such. Every case is different. Consult a licensed professional in your state. Viewing this website or its content does not create an attorney-client relationship with Lyda Law Firm or any of its lawyers. 

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