Probate FAQ's

The living trust is often marketed as a vehicle that allows you to "avoid probate" upon your death.  Probate is the court-supervised process of administering your estate and transferring your property at death pursuant to the terms of your will.  Many types of property routinely pass outside of the probate process, even without the cost of establishing a living trust.   Such property includes life insurance or retirement plan proceeds, which pass to a named beneficiary by designation rather than pursuant to your will, and real estate or bank or brokerage accounts held in joint names with right of survivorship.

While it is true that the property passing under the terms of a living trust upon your death will "avoid probate," it should be noted that there may or may not be actual value in that result.   Probate laws are different in every state.  A properly drafted will in many states can eliminate some of the steps otherwise required in the probate proceedings.   In addition, much of the delay and red tape customarily associated with probate is a result of tax laws and tax filing requirements, which cannot be eliminated through a living trust and the avoidance of probate.

If you fail to plan your estate and die without a will, the law will create a plan for you.  The entire system - which is set forth by statute - is too complex for a discussion here, but some surprising and frequently undesirable results can occur.

An attorney ad litem (independent attorney) is appointed by the court to represent the unknown heirs and heirs suffering disability and is required in all heirship proceedings.   Although the Texas Estates Code makes the appointment discretionary, most Courts have determined that one must be appointed in each case.  The Attorney Ad Litem makes sure that no potential heirs are being intentionally or accidentally left out.

In general, the will must be submitted for probate within four (4) years of the date of death.  If the estate needs to be administered in order to deal with transfer of certain assets of dealing with creditors, the will MUST be probated within the four (4) year period.  If more than four years have passed, it may still be possible to probate the will but a more complicated procedure is likely required.  Sometimes people think that because they have access to all the bank accounts, or are allowed to continue using real estate, it is not necessary to probate the will.  This can cause major problems that will end up costing the family a lot more money to clean up the problems that arise from waiting beyond the four year mark.

Only a licensed attorney may represent a third person or entity in a judicial proceeding in the State of Texas.  In most probate or guardianship cases, an individual applicant is not truly representing only himself, rather he or she is attempting to represent another person or persons such as beneficiaries, heirs, or the estate itself.  Unless the applicant is a licensed attorney, filing an application to probate a will without an attorney constitutes the unauthorized practice of law and will not be allowed by the Court.   In certain limited circumstances a person may act without an attorney.

A letter of testamentary (also known as letters testamentary) is a legal document that is issued by the court after a will has been presented for probate.   The letters name an individual as "Executor" and give this person the authority to administer the estate.  The Executor steps into the shoes of the person who died and can handle their bank and other financial accounts, transfer title to real and personal property, deal with creditors, etc.

No, an individual who has been convicted of a felony or who owes the estate or person under guardianship money cannot serve as executor, administrator or guardian.

An executor or administrator may be removed with notice if he or she fails to make a final distribution settlement of the estate within three years after letters have been granted to him or her.  The executor or administrator may make application to the probate court for an extension of this time upon verified application showing good cause.

Only the person listed as the responsible party to a debt is legally obligated to pay that debt.  If the debt is only in the name of the person who died, then that persons "estate" is the only one responsible for paying.  This included husband/wife relationships.  If the husband passes away and the debt is only in the husband's name - then the wife is not legally responsible to pay the husband's debt.  This is one important reason why you might need to probate an estate - to deal with the Decedent's creditors.

If creditors call, tell them the person has passed away and they will need to wait until an Executor or Administrator is appointed to take care of the Estate.  NEVER agree to pay anything or sign anything these creditors may ask of of you until you consult with an Attorney.  Many creditors attempt to get the surviving spouse or other relatives to take over the debt - or they try to convince the surviving spouse that they are responsible for the debt, when in fact they are not.  Again, please consult with an attorney before agreeing to anything.

There is no specific time.

You should contact the independent executor and ask what the status of the estate is, and when final distribution can be expected.  If you are not satisfied with the answer, you can file a request for an accounting 15 months after the Letters Testamentary were issued, or 2 years after appointment you can request an accounting and distribution.

This is probating a Will for the simple reason of just transferring title of real property.  It is a unique Texas procedure where the will is filed through a probate proceeding to transfer ownership of real estate in Texas to the beneficiaries in the will without a deed or a full probate.