What is Probate?
Even after practicing probate law for years, some friends ask us, “What is Probate?” The word “probate” is from the Latin word “Probare” which means “to test” or “to prove.” In America, the word probate is usually used in reference to a deceased person’s last will and testament. .
What is Probate (in Texas)?
Probate in Texas is the legal process after someone dies in which a probate court determines that the person (decedent) died and allows administration of the deceased person’s estate. In Texas, an estate is all of the decedent’s property (assets). An estate can include money, cars, land, stocks, bonds, life insurance, and retirement accounts. Going back to the Latin meaning, probate is proving to the probate court that the person is deceased and that the last will and testament is valid under Texas Law.
To start the probate process, your probate attorney will create and file an application to probate in a Texas probate court. Under Texas Law, in most cases, you are legally required to have a probate attorney in order to file for probate.
After your probate lawyer files the application, it takes at least two weeks to get a probate hearing. In some courts it takes two weeks to get a hearing, in other courts it could be months. The reason you can’t get a probate hearing for at least two weeks is because Texas Law allows time for legal notice to be posted at the courthouse. The posted legal notice is meant to notify anyone who might want to contest the Will or the administration of the estate (if there wasn’t a Will).
During the probate hearing, the probate attorney calls a witness (usually the potential executor) and asks them a list of questions to prove for the probate court: that the decedent died, that the probate court has jurisdiction (can legally hear the case), that the executor can serve (if there’s an executor), and that there’s a valid Will or that the decedent died without one. By the way, an executor is the person the decedent named in the Will to be in charge of handling the estate. If there isn’t a Will, the probate court appoints someone (called an “administrator”) to handle the estate. A Texas probate attorney will walk you through each of these steps.
After the probate court hearing, the decedent’s property is gathered, the estates’s debts are resolved, and the remaining assets are distributed to the beneficiaries or heirs. If the decedent didn’t leave a Will (died “intestate”), Texas has intestacy laws that detail who gets what.
Note, in Texas, an executor usually has four years from the date of the decedent’s death to file for probate.
Does All Property Go Through Probate in Texas?
No, not all property goes through probate. Some examples of property that often doesn’t go through probate in Texas: trusts, life insurance, bank accounts with beneficiaries listed, annuities, and property co-own ed with someone else, like a joint tenancy. Also, if an estate is small enough, it doesn’t have to go through probate.
To ask a legal question or get legal help from Texas wills and Texas Wills and Probate lawyers Isaac Shutt and Peter Hall, use the online contact form to the right or call (214) 302-8197. If you prefer to meet at the law office in person, the attorneys will gladly offer a free consultation.
Shutt Law Firm’s office is conveniently located just north of Dallas, and just south of Plano, TX. The law office is near the intersection of highway 75 and Campbell Road in Richardson, Texas.
You can also call Mr. Shutt or Mr. Hall at (214) 302-8197 for more information on the topic discussed in this article or to discuss a different legal matter.
Please consider the Shutt Law Firm if you want to know more about probate in Texas, more about a Texas Last Will and Testament, or you need Richardson Probate Attorneys serving Dallas, Plano, Allen, McKinney, Garland, Addison, Denton, TX, Collin County, Tarrant County, or surrounding North Texas area.
DISCLAIMER: Nothing in this brief article constitutes legal advice. The information provided herein is merely provided in the spirit of education and is believed to be accurate as of the time it was originally prepared, and laws change. If you have a legal question, you should consult a lawyer for your specific legal situation. Further, nothing in this article shall be construed to have started an attorney-client relationship. No such relationship exists until both you and and an attorney at Shutt Law Firm sign an engagement letter.
By Elizabeth Nanez