(1) WHAT IS PROBATE?
Probate is a legal proceeding that takes place after one's death that proves their will to be valid or invalid. This legal proceeding also includes the administration and settlement of an estate and the management of the estate of individuals whom are the subject of a guardianship.
Probate is a legal process that takes place after someone dies. It includes: proving in court that a deceased person's will is valid (usually a routine matter) identifying and inventorying the deceased person's property.
What are the steps involved in probating a will which calls for independent administration and which has been properly drafted, executed and witnessed?
· Applicant (the person who is asking that the will be admitted to probate) takes the original of the will to his/her attorney to be reviewed for essential elements of wills, examination for self-proving affidavits, designation of an independent executor/executrix, etc.
· The attorney will prepare an application for probate and file it along with the original of the will with the probate court in the county of the decedent’s domicile.
· Your attorney, through the county probate clerk, will provide for notice regarding the probate pursuant to state law.
· The court will notify your attorney when the statutory notice has been given and will give a date after which a formal hearing may be conducted. Your attorney will contact you and coordinate a time which is convenient to both you and the court for the hearing. This is usually 2-5 weeks after the application has been filed.
· Court appearances are normally limited to one short proceeding where testimony is presented through your attorney’s questions which offer proof of the facts alleged in the application.
· Your attorney will prepare an order for the court to sign, a statement of facts which a witness will be asked to sign and an oath to be taken by the administrator.
· Attorney will, in most cases, hand-carry the oath of the executor to the clerk of the court authorized to issue letters testamentary. Attorney will order and supply letters testamentary to the executor/executrix.
· Attorney will cause notice of the executor appointment to be printed in a local newspaper in compliance with state law.
· Attorney will work with executor to prepare and file an inventory of items belonging to the estate at the date of death. (This is not a complicated document and will speak in fairly general terms regarding items of inventory.)
· Your attorney will work with your executor to notify creditors. This serves some very useful purposes which will be discussed between attorney and executor.
· Your attorney or your executor (depending upon what is requested by executor) will coordinate efforts to pay creditors or compromise liabilities.
· Attorney will work with survivors and/or family to determine if other special needs exist.
What is the significance of independent administration?
If one factor could be highlighted to demonstrate the reason that probate is not a horror in Texas it would doubtless be the fact that Texas allows independent administration. Independent administration (emphasis on the word “independent”) is a tool which is not available in many other states and is usually not made part of wills prepared in states other than Texas.
The practicality of independent administration is that once the executor is appointed (usually 2-5 weeks), the representative who was selected by you is authorized to represent your estate without the necessity of obtaining court permission or consulting an attorney to carry out your testamentary wishes. The executor (a person that you personally selected) is charged with following the instructions that you left in your will in an effort to carry out your exact wishes.
Will my attorney be paid a percentage of the value of the estate?
The answer to this question is an unequivocal and resounding NO. Attorney fees should be based upon actual work performed. In most cases this will be the result of an hourly fee multiplied by the hours expended. In my own firm, it is our practice to set flat fees and to perform all agreed services for one predetermined sum.
How large must my estate be to need probate?
There is no dollar minimum or maximum to require probate. Although many property issues can be solved outside of probate, many cannot. There are instances where something as minor as a deposit account or check can only be practically accessed by the estate. In this case, even an asset of only $4,000.00 or $5,000.00 may require probate to fully settle the estate.
The bottom line is that probate in Texas should be neither expensive nor a horror. This writer does not wish to imply that there can not be problems which arise in probate, but it must be noted that most, if not all, of those potential problems can be avoided through thoughtful planning by competent legal counsel.
There is no practical substitute for an attorney of your choosing who will work with you to express your exact testamentary wishes at the time of will drafting.