Q&A - Resources

Can I probate an estate without a Will?

Yes, but the process becomes more cumbersome. For example, the Court will have to determine the Decedent’s heirs before designating an independent Administrator. You should review all your administration options with your attorney, because an alternative to probate may be a better option in your situation.

What if I cannot find the original Will, but only a copy?

The Texas Estates Code does allow for a copy of the original Will to be probated in the case of a lost Will. Texas Estates Code §§ 256.054 and 256.156. But this is a difficult and expensive process. There is a presumption that the Testator (person who wrote the Will) revoked it. Thus, a judge may not always admit a lost Will to probate.

Do I have to have an attorney represent me?

Yes, in nearly every Court. Most Courts will not let you serve as an Independent Executor without an attorney because many creditors and beneficiaries are affected by the probate process. The Executor position is fiduciary, meaning the person has a duty to act for the benefit of others (i.e., the beneficiaries). Therefore, most Courts require attorneys to represent Executors. Check with the Court that has jurisdiction over your case to verify their specific rule.

How long do I have to probate an estate?

Ordinarily, an application to probate a Will must be filed within four (4) years of the date of death of the Decedent. Letters Testamentary or Letters of Administration cannot be issued more than four (4) years after the date of death of the Decedent.

Does probate mean I have to go to Court?

Yes, if you are named the Executor of an estate. However, your trip to the courthouse will likely be brief and painless. While most of the probate process can be handled by your attorney, an Executor should: (1) attend a hearing before the judge in order to admit the Will to probate and (2) take the Oath of Executor before the Court or the Court clerk. Both of these tasks can be accomplished in a single trip to the courthouse.

I was told that probate is expensive and to avoid it, is that true?

Generally, probate is not expensive in Texas. Legal fees for probate are typically based on an hourly charge as opposed to a percentage of an estate or a flat rate. Texas permits “independent administration” of estates which avoids costly Probate Court procedures. Generally, Texas is considered a “probate friendly” state. Other states mandate “depen- dent administrations” which could create high legal fees. A good rule of thumb is to discuss costs in your initial meeting with your attorney.

If the Decedent had a Living Trust, that means that the estate does not have to go through probate, right?

It is possible, but unlikely, that a Living Trust allows one to avoid the probate process. Probate can be avoided if all of the estate’s assets are in the Trust. However, people seldom transfer all of their assets to the Living Trust. Assets outside the Trust may still be subject to probate.

What is the difference between a “Living Will” and a “Regular Will”?

A “Living Will,” also referred to as a “Directive to Physician”, becomes effective (if medically necessary) while an individual is still alive. The document instructs medical personnel to either withhold or continue life-sustaining procedures in the event the individual reaches a terminal or irreversible medical condition.

A “regular,” or traditional, Will does not become effective until after the individual’s death. The Will is the legal declaration of an individual’s intention for the disposition of their estate following their death.

If I want my child who is not a resident of Texas to be my Executor, will that be a problem?

The Estates Code specifically excludes a non-resident of the State of Texas from qualifying to serve as estate Executor. However, if the non-resident appoints a resident agent to accept service of process in all actions or proceedings with respect to the estate, and such appointment is on file with the Court, then a non-resident can serve as an Executor.

What are Letters Testamentary?

Letters Testamentary are official documents issued by the Court authorizing the Executor to act for the estate. They are the proof to others that the Executor has been qualified by the Court.

If I do not have a Will, does the State of Texas get all of my assets?

When a person dies without a Will, Probate Courts in Texas distribute estate assets according to Texas’ laws of intestacy. Your property will be distributed to your heirs according to a formula that the Court applies based on specific rules of distribution to your surviving family members. If no heirs are available to inherit your assets, then your property may escheat (be transferred) to the State of Texas. The state must file a petition for escheat and successfully show that there are no heirs to the estate before it can properly claim the property for the state.