Marivonne R. Essex, "The Red Headed Lawyer"
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Probate Lawyer in Spring TX

The validity of a will must be proved in court, a procedure known as “probate.” In Texas the rule of law is that a will must be probated within four years after death, although there are some exceptions. If a will has met the requirements for execution (e.g., signed by the decedent and two witnesses in the manner required by law) and has not been revoked or canceled, and if the will provides for an “independent” administration, the process in Texas is relatively simple and inexpensive. The process begins with the filing of an application to probate the will in the county where the decedent resided at the time of death. In simple terms, this means that the original will is submitted to the county clerk along with an application, or request, that the will be admitted for probate. The filing of the application is a type of lawsuit and, as with all lawsuits, notice must be given that the suit is pending so that anyone claiming an interest in the estate may have the opportunity to present a claim to the court. After the county clerk gives the proper notice and the required waiting period has passed, a hearing is set so that the judge in the presiding court may hear the applicant’s request for the will to be admitted to probate. The hearing is a simple proceeding, not unlike an uncontested divorce hearing, in which the applicant (usually the executor named in the will), stands in front of the judge along with his or her attorney and confirms the decedent’s signature in the original will; gives certain statutory information such as the decedent’s name, date of death, residence of time of death, name of the executor, executor’s willingness to serve and that the executor is not disqualified by law from serving; that a necessity exists for administrator of the will; and other basic facts related to the decedent’s estate. Once the judge signs an order admitting the will to probate, the executor will be issued “letters of administration.” The letters allow the executor to begin the administration of the estate.

The administration of the estate is the process by which the executor manages the decedent’s assets; pays the decedent’s debts and handles any claims against the estate; pays any estate taxes; and distributes the remainder to those entitled to receive it. An executor has what is known as a “fiduciary” duty to follow the will as closely as possible in managing the estate. If the will states provides for an independent administration, the executor may act without court supervision. The executor by law must either file a sworn inventory and appraisement (or an affidavit that an inventory and appraisement has been provided to all beneficiaries). The executor must officially notify certain creditors that the administration is pending. Other than that, the executor is free to manage the property, sell assets, settle with creditors, and do any and all actions necessary to administer the estate. Unlike an administration of an estate without a will in which the court must supervise the acts of the personal representative, an independent administration avoids the costs and delays associated with having the personal representative seek court approval before acting on behalf of the estate.

In certain cases, even though the decedent left a valid written will, it may not be necessary to probate the will. Proceedings such as submitting a Small Estate Affidavit to the court or filing an Affidavit of Heirship may be used in place of formal probate. It is best to consult an attorney on whether to use such alternatives to formal probate. If the decedent did not leave a valid written will but left assets to be distributed and/or debts to be paid, it will be necessary to file for an administration of the estate and ask that a personal representative be appointed. The assets of the estate will then be passed according to the laws of descent and distribution of the State of Texas.