On the death of a Texas resident, the laws of probate court govern the handling of wills. Probate is the process of "proving" that the will is valid, and that its instructions conform to the law. During the probate process, the court grants letters of administration to the executor, and oversees the handling of the estate. The case begins with the filing of the will in the probate court having jurisdiction in the county where the deceased lived.
Types of Probate
Texas law provides for three different forms of probate. Supervised probate involves the court and the presiding judge throughout the process. The executor must submit a detailed inventory and account for the distribution of all assets to the heirs. An independent or unsupervised probate case allows the executor to carry out these tasks free of court oversight, with only basic forms on the process filed with the court. Executors may also file an application for informal probate within 30 days of the death of the testator (the author of the will). For informal probae, Texas law requires that all debts of the estate must be paid, and there must be no contest of the will or litigation among the beneficiaries.
Read More: Can an Executor Probate a Will Without a Lawyer?
To open a probate case, the executor or another representative of the estate must file an application as well as the will with the probate court. Texas law requires a waiting period of at least two weeks before a hearing can be held on the application. The clerk of court notifies the public with a posting at the courthouse, allowing anyone with an interest in the proceeding to come forward and either contest the will or the appointment of the executor. At the hearing, the court will rule on the validity of the will filed with the application, and on the necessity of administration and/or supervision of the process by the court. The court can also rule that the deceased died intestate, or without a valid will.
Probate courts may write and enforce their own rules, while always conforming with state law. Most Texas counties require that the executor of an estate be represented by an attorney, to ensure that the executor capably carries out his task. According to state law, executors must also notify all creditors of the estate of the probate case, and file an inventory of all estate assets with the probate court. The executor has 90 days after his appointment to file this inventory.
Deadline for Filing
Anyone possessing a will must deliver that will to the probate court within four years of the death of the deceased. Failure to do so can result in a summons from the clerk of court and an order to show cause why the will has not been filed. If no will is forthcoming, and the court has reason to believe the respondent is in possession of the will, the court may issue a contempt citation and an arrest warrant. Texas law bars the court from issuing any letters of administration when a will has not been filed within the four-year deadline.
If a four-year period has passed and no will has been presented, any party may file an application to the probate court for a proceeding to determine heirship. Instead of appointing an administrator to handle the estate, the court has the authority to declare who the legal heirs of the estate are, and what their rightful inheritances should be, according to state law.
Founder/president of the innovative reference publisher The Archive LLC, Tom Streissguth has been a self-employed business owner, independent bookseller and freelance author in the school/library market. Holding a bachelor's degree from Yale, Streissguth has published more than 100 works of history, biography, current affairs and geography for young readers.