Probate A Will
How do you probate a will?
For a Will or Last Testament to have any legal effect, it must be probated in Probate Court to prove its validity, and that it was not revoked. The probate procedure starts with filing the original will and an application with the court, asking the court to admit the will to probate (Click here for more information for executors and trustees).
Most important steps during the Probate Process:
- Naming a Personal Representative: When your loved one died with a will, a personal representative or executor will be named for the estate. (If there is no will, or no will can be found, the court will appoint someone. Usually, this will be one of the remaining living family members, like a spouse or the adult child of the deceased who wants to step in the role of the personal representative. This can be done by requesting the court to appoint them as the court appointed-representative.) After the personal representative or executor is identified, they will take an oath to perform their duties as required by law. As your attorney, we can help you with every part of this process.
- Notification of Death to Creditors And Heirs: Texas requires that a notice is published in a newspaper in the County in which the probate proceeding is pending. The notice is meant to inform any potential creditors of the deceased that the probate proceeding has been opened. The notice will inform the creditors who the executor and attorney of record are so that creditors can file a claim against the estate so that they may be repaid by the estate. The Notice to Creditors is a routine matter which we can prepare for you.
- Creating an Inventory of The Estate’s Assets: The personal representative or executor has the legal requirement to inventorying all estate assets. This is accomplished so the total value of the estate can be determined and serves as a way to determine if there is enough money to cover all debts. This usually is one of the most time-consuming parts of the probate process, for which we urge you to start early.
- Distribution of Said Assets, Including the Paying of Any Debts: The final step of the probate process is the distribution of the estate assets or property, however, this can not be done before all creditors have to be paid (there is a legal order in which payments are made, and there is a list of of debts that qualify to be paid off). Once all this is done, the probate process will be deemed completed.
Who can start probate of a will?
The application may be made by the executor named in the will or by any heir, devisee, spouse, creditor, or any other persons having a property right in, or claim against, the estate. The person starting probate usually will have to “front” the money for all legal fees involved before they can be reimbursed by the estate.
How long do you have to probate a will in Texas?
A Will should be submitted for probate within four (4) years after the death of the person making the will. A Will can be probated after four (4) years, however, the person bringing the Will must explain why he or she did not offer the Will in a timely manner so that they will not be deemed to be in default.
Must the executor use the decedent’s attorney that drafted the Will?
No, there is no requirement that the attorney who drafted the Will needs to be the attorney who probates the will.
The executor is free to hire the attorney of his or her choice. If the drafting attorney still has possession of the original will and refuses to release it to the executor, Law Offices of GP Schoemakers, PLLC can file a motion with the probate court compelling the drafting attorney to surrender the will to the court.
Do I need an attorney to Probate a will?
Yes, you do. Under Texas law, people applying for letters testamentary, letters of administration, determinations of heirship, and guardianships of the person or estate must be represented by a licensed attorney. Only licensed attorneys may represent someone else’s interests. Self-represented applicants may proceed in court only if they are really representing themselves alone.
Call or contact us today to help you with your Probate Needs! We can help no matter the size or complexity of the estate. We offer affordable flat fee options, hourly fees or hybrid fee solutions where appropriate.
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Ms. Schoemakers knowledge of law extends beyond family law. She always places the interest of her client above all else. Truly an asset to the profession.