We are often asked the questions: “How do I probate a Will?” and “Is it necessary to probate a Will?”.
In many circumstances, the answer to the latter is “Yes”. However, Texas Probate, as compared to other states, is a fairly straightforward process. When a person dies with a Will, they are considered “Testate”, meaning that the disposition of all of the property that they own upon death will be distributed according to the terms of their Will.
The Probate process can be summed up in three simple steps:
Collecting and preserving all of the person’s property;
Paying all debts and expenses owed by the Estate;
Distributing all property according to the terms of the Will.
The first step in probating a Will is the preparation of an Application to Probate Will. This involves collecting information about the person such as when they died, the fact that they executed a valid Will, who was named as Executor or Executrix in the Will, and whether there is a need for administration of the Estate. This Application, along with the Will, are delivered to the Court with probate jurisdiction. After a required notice period, the Court will set the matter for hearing before the Judge.
At the hearing, the Applicant (person applying to become Executor or Executor) will provide testimony to the Court about the Estate and the person that died. The Court will then recognize that the person has died, that the Court has jurisdiction and that venue is proper, that the Applicant is qualified, and that the person died with a valid Will.
In many circumstances, it is necessary to obtain administration on the person’s Estate. This requires obtaining Letters Testamentary, which give the Executor or Executrix the right to collect assets, manage them, and distribute them pursuant to the Will.
In some circumstances when administration of the Estate is not necessary, or cannot be obtained (such as probate of a Will more than four years after a person’s death), the Will can be admitted to Probate as a Muniment of Title only. This means that the Will, acting together with the Order Admitting the Will to Probate, act as a “deed” in the Probate Records of the County, putting all people on notice that all property owned by the Estate passes to those persons named in the Will entitled to receive such property.
Whether Probate is opened with administration (Letters Testamentary) or without administration (Muniment of Title), it is important to consult with an experienced Probate Attorney who can guide you through the process.
Michael W. Middleton is Board Certified in Estate Planning and Probate, and has been in practice in the area of Probate Law for thirty years. If you are interested in learning how to probate a Will, contact us today for a consultation to discuss your needs.
Michael W. Middleton, P.C.
Our goal is to provide timely, effective, and efficient legal services in response to each client’s individual needs.