Last month we talked about what is probate, and I defined it as simply the court process we go through to allow us to transfer assets from the name of the deceased person to the name of their beneficiaries or heirs. This definition lead us to our next Asked and Answered topic: What does the probate process look like?
It seems like everyone is trying to avoid it— but I think it would be helpful to know what exactly what it is you are trying to avoid.
The probate process looks different when we have a properly executed Will drafted by a skilled attorney, a properly executed Will downloaded from a form or drafted by yourself, improperly signed Will (which many cases ends up not being a valid Will at all), and have no Will. For today’s conversation, we are going to discuss the process when you have a validly signed and executed Will and we are going to assume it was drafted properly by a skilled attorney and has elected for you to avoid common pitfalls seen in forms and self drafted wills.
When a person has passed away with a validly signed and executed Will, the heirs typically go through the probate process. The first step is to identify the Executor nominated in the Will. This person doesn’t have authority to act as the Executor until they are appointed by the court. The nominated Executor is the person who presents the Will to the court for probate. In Texas, even if you are nominated in a decedent’s (the person who passed away) Will, you still have to meet certain qualifications in order to serve as the Executor. Under the Texas Estates Code, Section 304.003 you cannot be:incapacitated
- a felon,
- a non-resident who has not appointed a resident agent,
- a corporation not authorized to act as a fiduciary
- a person whom the court finds unsuitable
Once the nominated Executor is identified, this person files an Application to Probate the Will and for Letters Testamentary. After they file this Application they must ask the court clerk to post notice on the courthouse notifying all interested parties that an Application has been filed. This notice must be posted for at least 10 days prior to any hearing. Once the notice has been posted, then you can set a hearing. Each county has what we call “local rules” on how we go about setting a hearing, in Bexar County, if you are represented by an attorney you are allowed to go to a hearing the first Monday after the 10 day waiting period is expired.
At the hearing, the Executor has to prove to the court that the Will is a validly signed and executed Will. If it meets the legal requirements to be a valid Will and passes the muster of the Court, then, the court will sign an Order approving (aka probating) the Will and appoint the Executor to serve. Before the Executor can receive the Letters Testamentary (which are the letters giving them the authority and authorization to act as Executor of the Estate) the Executor must swear to carry out their duties as detailed by law and the Will. Once the Executor is sworn in, they will receive the Letters Testamentary and begin their job as Executor.
Once appointed, the Executor’s job begins. They must collect all of the assets of the estate, send proper notices to creditors, send notices to beneficiaries, file the last income tax return of the decedent, and distribute assets. There are certain time requirements for each of these things to be done. In general, there is a deadline to file certain paperwork with the court at 30 days from being appointed, 60 days and then again at 90 days. The paperwork the must be filed includes proof that proper notices were sent to the appropriate persons and entities, and and Inventory detailing the assets in the estate. Depending on the type of assets that need to be distributed and the beneficiaries, assets may begin to get distributed as early as 90 days after the Executor is appointed and sometimes it is much longer.