Do-It-Yourself Probate in Texas

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In Texas, probate is the process of proving a will in court. A probate proceeding is heard in the probate court of the county in which the decedent, the person who died, resided.

The probate process involves the distribution of the assets in the decedent’s estate, which include money, personal property and real property. ‌A person can engage in the probate process without the assistance of an attorney.

When There Is a Will

The first step is to file an application for probate in the local probate court where the person who made the will (the testator) died. A person has four years from the testator's date of death to file an application for probate in Texas. A hearing on the probate application typically occurs two weeks after the application has been filed.

Generally, the executor of the estate is the person who files the application for probate. The executor is the person named in the will as the person to distribute the assets of the estate. The assets of the estate may be distributed to a single loved one or to multiple named beneficiaries, depending on the language in the will.

The Texas Probate Hearing Process

During the waiting period, the county court posts a notice at the courthouse stating that an application has been filed to probate an estate. This posting serves as notice to anyone who might want to contest the will that they have a certain number of days to file a contest. If they do not, the court proceeds to recognize the will as valid.

In the hearing before the probate judge, the court recognizes that the decedent has died; the court has jurisdiction of the case; the person applying to be the executor is qualified to serve; and the decedent died with a valid will. After a will has been probated, it can be contested up to two years after it has been admitted.

When There Is No Will

When a decedent dies without leaving a will, the court typically conducts a determination of heirship. This is a hearing to determine who receives the decedent’s assets. The recipients are called heirs.

A qualified person, such as a family member, must file an application to request a determination of heirship. In the hearing, the court makes a formal declaration about the identity of the deceased person’s heirs after reviewing evidence presented by the applicant and the report of the attorney ad litem.

Representation of Unknown Heirs

The attorney ad litem is a court-appointed attorney who represents the interests of heirs whose names and/or locations are unknown. Pursuant to the declaration of the heirs, the attorney ad litem enters an order to determine the identities of the decedent’s heirs and their respective shares of the decedent’s estate.

This allows the decedent’s property to be divided and distributed among the heirs.

Affidavit of Heirship

An affidavit of heirship is used when a decedent died intestate, meaning without a will. The decedent must also have died without any outstanding debts at the time of death and have left only real estate in the state of Texas.

Instead of going through the probate process, the heirs can file the affidavit of heirship. They should do this in the deed records of the county in which any piece of the real estate owned by the decedent sits.

The affidavit of heirship must be signed and sworn to by two disinterested witnesses. The term “disinterested” here means a person who knew the decedent and the decedent’s family history, but who will not benefit financially from the estate. It is preferred that such a witness is not related to the decedent by blood or marriage.

Recording the Affidavit of Heirship Under Texas Law

After the affidavit has been signed and recorded in the deed records of the county, it links the chain of title in the decedent’s real estate to the heirs. At this point, most title companies and real estate companies allow the heirs to sell the property. A form for the affidavit is found at Texas Estates Code Section 203.002.

Documents Needed to Probate a Will

A court and the county clerk’s office are unlikely to have forms for application of probate or other documents necessary to file a probate case. The person filing the application for probate or application for determination of heirship must learn the local formatting rules for such documents and prepare them themselves.

Costs to Probate a Will in Texas

The cost to probate a will in Texas depends on the county in which the decedent resided. Each probate court has unique fees for the probate process. For example, in Smith County, the fee for probate of a will is $404.

This fee includes one posted citation; each additional citation is $80. Each personal service of citation by a sheriff or constable is $80. Each personal service of citation by certified mail is $80. The fee for determination of heirship is $524.

When a Will Is Not Probated

If a will is not probated within four years of the decedent’s death, it can be termed invalid, and the deceased person’s estate assets will be distributed as if they died without a will. Sometimes a family chooses to avoid the probate process so that they do not have to pay county fees.

They may choose to distribute assets to the beneficiaries according to the will, even though the will has not been probated. The family distributes the non-probate assets (assets that would not be distributed through the probate process) such as funds in joint bank accounts to the beneficiaries named on the accounts.

Distributing Non-Probate Assets

There are a wide variety of nonprobate assets, including checking accounts, savings accounts, investment accounts, IRAs, 401(k)s and life insurance policies.

When the decedent dies, the entity holding the account or policy distributes the assets in the accounts to the beneficiaries named on the paperwork. The executor does not distribute these assets after a will goes through the probate process.

A person does not need an attorney to receive a non-probate asset, but they may choose to hire an attorney if another individual or entity contests their right to receive an asset. This contest is not the same as a will contest.

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