Our firm receives a multitude of questions about probating wills in Texas (also known as a testate probate). The purpose of this post is to provide an introduction to the law and legal process surrounding wills. When someone dies with a will, the decedent’s property passes according to instructions in the will. The will must usually be admitted and proven as valid in a probate court before the will may have any legal effect or power.
Probate is the official proving of a will. The proof process is conducted in Texas probate courts in compliance with the Texas Estate Code. Almost all wills must be probated in these courts. Generally, the will must be submitted to a probate court by the fourth anniversary of the decedent's or testator’s death.
A will is a written, signed and attested document prepared in compliance with the Estate Code’s will formation rules. Handwritten (also called holographic) wills are legal in Texas. For a will, other than a holographic will, to be valid in Texas, the person executing the will must be at least 18 years old (with some exceptions), the will must be in writing, the will must be signed by the testator, and the will must be witnessed by two persons over the age of 14. A will may not be revoked, except by a new will, codicil (amendment to a will), written declaration or destruction. Various parties may file an application for an order admitting a will to probate, including executors and interested persons (those with a right or a claim).
Most wills name an executor to oversee the estate’s distribution. Executors have a fiduciary duty to the beneficiaries or distributes of the will. This means that an executor owes the highest standard of care to the beneficiaries of the will. Executors must satisfy certain statutory requirements to serve which include capacity and the absence of any felony criminal history. Once the will has been filed by the executor, notice must be sent 60 days prior to the court admitting the will to the parties named in the will. Additionally, parties having claims against the estate are entitled to notice as well.
A will must be proven up prior to being admitted. The court will always look to see that the statutory proof requirements are satisfied. These requirements include (1) the testator is dead (2) four years have not elapsed since the date of the testator's death (3) the court has jurisdiction and venue over the estate (4) citation has been served and returned and (5) the executor is not disqualified.
After a will is admitted in probate court, the executor must provide the court with: 1) an inventory of the estate’s property, along with its fair-market value within 90 days of the executor's approval, and 2) a detailed list of claims against the estate. Claims by creditors may be presented to an executor of the estate or to the court’s clerk. Costs (debts, funeral, taxes, fees) are generally first charged against the estate unless the will provides otherwise.
While rare, one potential roadblock in probating a will is its contest - when someone objects to the terms in the will or the plans for the estate’s distribution. Someone interested in an estate may file written opposition before the court has decided an issue and before the second anniversary of the date that the will was admitted to probate.
Even though will contests are unusual, probate is still a very complex affair. We strongly suggest that you use the above for general information only, and if you find yourself a party to a will or an estate-distribution process, seek the advice of a competent probate attorney.
All information provided on Silblawfirm.com (hereinafter "website") is provided for informational purposes only, and is not intended to be used for legal advice. Users of this website should not take any actions or refrain from taking any actions based upon content or information on this website. Users of this site should contact a licensed Texas attorney for a full and complete review of their legal issues.