Probate is the process of winding up the business affairs of a person who has passed away (the decedent). A court determines whether a testamentary document, such as a will or another document that transfers assets or property, is the decedent’s true last and valid will by fulfilling certain requirements.

Working with the right probate and estate planning attorney, like our lawyer Jack Robinson, can make all the difference in safeguarding your assets and ensuring your wishes are honored. Our dedicated team at the Law Office of Jack Robinson has years of experience in the field and is ready to assist you with top-notch quality and comprehensive estate planning and probate services.

Here’s a guide to understanding probate and estate planning processes in Texas.

Understanding Probate and Estate Planning

Probate and estate planning comprises processes that ensure the orderly transfer of assets and the fulfillment of a decedent’s wishes. To help you better understand how it works, here are 11 key questions you might be asking and answers from our dedicated legal team to guide you:

1. What are Probate Assets?

Probate assets are controlled by the decedent’s will and/or estate, including assets titled in the decedent’s name without a designated beneficiary. The successful completion of probate distributes probate assets among the following: 

  • Beneficiaries
  • Creditors
  • Anybody qualified and with a valid interest in a decedent’s estate

2. Can I Probate an Estate Without a Will?

Yes, but the process becomes more complex. For example, a court will need to determine the decedent’s heirs before designating an independent administrator. You should review all of your administration options with your attorney, as an alternative to probate may be a better option in your situation.

3. What Should I Do If I Can Only Find a Copy of the Will, Not the Original?

The Texas Probate Code allows a copy of the original will to be probated in the case of a lost will, but this is a difficult and expensive process. There is a presumption that the testator or the person who wrote the will revoked it. Thus, a judge of the state may not always admit a lost will to probate.

4. Is Legal Representation Required for Probate in Texas?

Yes, in nearly every court. Most courts will not let you serve as an independent executor (the person charged with carrying out the wishes of the decedent) without an attorney because the probate process affects many creditors and beneficiaries. 

Fiduciary Role

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 its specific rule.

5. What Is the Statute of Limitation for Filing a Probate Application in Texas?

The statute of limitation to an application to probate a will in Texas must be filed within four years of the date of death of the decedent. Letters of testamentary or letters of administration cannot be issued more than four years after the date of death of the decedent.

6. Is Court Attendance Necessary for Probate?

Yes, if you are named the executor of an estate. 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. 

These tasks can be accomplished in a single trip to the courthouse.

7. Is Probate in Texas as Costly as People Say?

Generally, probate is not expensive in Texas. Legal fees for probate are typically based on an hourly charge instead of a percentage of an estate or a flat rate. Texas permits “independent administration” of estates, which avoids costly probate court procedures. Be sure to discuss costs in your initial meeting with your estate planning attorney.

8. Does Having a Living Trust Avoid the Need for Probate?

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

9. Can a Non-Resident of Texas Serve as an Executor, for Example, a Child?

Texas Probate Code specifically excludes a non-resident of Texas from qualifying to serve as an 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 of Texas, then a non-resident can serve as an executor.

10. What Are Letters of Testamentary in Texas and What Do They Do?

Letters of testamentary in Texas are official documents issued by the court authorizing the executor to act for the estate. They are the proof to others that the court has qualified the executor.

11. What Happens to My Assets If I Die Without a Will in Texas?

When a person dies without a will, probate courts in Texas distribute estate assets according to Texas’ intestacy laws. Your property will be distributed to your heirs according to a formula the court applies based on specific distribution rules to your surviving family members.

If no heirs are available to inherit your assets, your property may escheat or be transferred to the State of Texas. The state must:

  • File a petition for escheat.
  • Successfully show that there are no heirs to the estate before it can properly claim the property for the state.

Contact Jack Robinson, Texas-based Probate and Estate Planning Lawyer, Today!

Working with the right probate and estate planning attorney, like Jack Robinson, can significantly influence the management and distribution of your estate. Our dedicated team at the Law Office of Jack Robinson is prepared to assist you with all aspects of probate and estate planning in Texas.

Book a free consultation with us today to get started!