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Attorneys and Counselors Dallas, Texas |
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Probate of a Will
in a Few Easy Steps
This page is current as of April 15, 2011.
The Executor of a Will has the responsibility of submitting the Will for probate. Under the rules of the Dallas County Probate Courts, an individual desiring to probate a Will must be represented by an attorney; and the attorney must appear in court on behalf of the executor of the will whenever a court appearance is required. The first steps an Executor should take are (1) finding the Will and putting it in a secure place; and (2) contacting a probate attorney.
If a Texas Will properly provides for an Independent Representation, the role of the probate court (and thus the expense to the estate) is minimized -- and the procedure is quick and easy. If the Will is in order, and no will contest is filed, the Will can be probated in as little as two weeks at a fixed fee.
Assuming that there is no will contest or other significant delay or complexity, the usual probate procedure is as follows:
1.
As your attorneys, we file the original will and an application for
probate with the probate court.
2.
A 10-day waiting period ensues while the court publishes notice that
the will has been filed.
3. After the 10-day waiting period, a hearing is held on the application for probate.
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The Executor of the will (or someone close to the decedent whom the Executor designates) must accompany us to the hearing.
- If the will is being probated in Dallas County, the hearing is held
on the 2nd Floor of the Records Building, on the corner of Main
Street and Houston, in downtown Dallas.
- The Executor must testify as to the date of death and other facts.
We will go over the testimony with the Executor in advance of the
hearing, and we will answer any questions that the Executor has
about the hearing or any other aspect of probate.
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To serve as Executor, a person must not be:
- a legally incapacitated person;
- a convicted felon;
- a non-resident of Texas, unless the person appoints a resident agent in this State; or
4.
The Executor must sign the Executor’s Oath, which will be notarized
and filed with the court clerk.
5.
After the hearing and the filing of the Oath, the court clerk will
issue “Letters Testamentary.” The Letters Testamentary are
certified documents that serve as authority for the Executor to do
everything that must be done – e.g., transfer title to property,
access bank and brokerage accounts, sell assets, distribute cash and
other assets to the beneficiaries, etc. -- to administer the estate.
6. We will send the following notices; and we will then file with the court clerk proof that the notices were sent:
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Mandatory published notice (in the Daily Commercial Record) to general unsecured creditors.
- Mandatory notice by certified mail, and a copy of the will, to each
of the named beneficiaries.
- Mandatory notice by certified mail to each secured creditor, such as
mortgage holders.
7.
The Executor must arrange for a final tax return to be filed for the
decedent, and possibly for a tax return to be filed on behalf of the
estate. We can recommend a CPA for those tasks, if you do not
already have one who is experienced in filing estate returns, or we
can do the returns ourselves, as you prefer.
8.
The Executor must contact all insurance companies with which the
decedent held life insurance policies, and all institutions at which
the decedent held retirement accounts, to ascertain whether the
proceeds are probate assets or non-probate assets. We will do
these tasks for you if you prefer; and we can advise how to
distribute the proceeds from these assets.
9. The Executor is responsible for making a written Inventory of the estate. We can assist in this process to whatever degree the Executor prefers.
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The Inventory is a “snapshot” of all of the estate’s assets as they existed at the time of death.
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The Inventory must include any claim for money that the estate has against another person or entity – such as a wrongful death lawsuit, a promissory note that was owed to the decedent, accounts receivable of the decedent’s business, etc
- The Inventory must also include a valuation or estimate of the fair
market value of each asset. We can help you determine those
estimates.
- The Inventory must be completed within 90 days of the date the
Letters testamentary were issued. Once the Inventory is
completed, we will file it with the court.
10.
In the event the deceased person owed money to creditors, the
Executor must pay those valid claims out of the estate’s funds.
11.
After the Inventory is completed and filed, and valid creditors are
paid, the Executor must proceed to carry out the terms of the will.
The Executor may need to sell certain assets, but in any event, the
Executor must transfer and distribute all of the bequests to the
named beneficiaries. We can assist you in that process at an
hourly charge, including drafting any deed transfers or other
documents that are necessary. Once Letters Testamentary are
obtained in an Independent Representation, no permission from or
involvement by the court is necessary to sell any of the assets, or
to distribute the bequests.
However, the Executor should keep good records of every
transaction; and in some estates, it is a good idea to obtain
receipts and releases from each beneficiary as his or her
distribution is completed.
12.
Once the terms of the will are satisfied, the process is complete.
Nothing further needs to be filed with the court.
Frequently Asked Questions
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