WHAT IS "PROBATE"?
is a term that describes the court process that occurs after a person dies. In some
states, probate is a cumbersome, time consuming, expensive and court
related hassle. Unlike those states, the probate court process in Texas is relatively straightforward.
Dying with a Validly Executed Will
The fact that Texas law permits you to appoint an Independent Executor* in a validly executed will makes the majority of estates procedurally uncomplicated.
*The Independent Executor is the person you name in your will to take care of your financial affairs and administer your estate after your death. Generically, you can also refer to this person as a personal representative.
Dying without a Will
If you die without a will, a different kind of personal representative can be appointed (referred to as an Independent Administrator) but there are more court steps involved than if you were to die with a validly executed will.
Additionally, it will most likely involve an additional requirement of a Determination of Heirship proceeding which is used to identify your heirs under law. It requires additional court filings and additional witnesses. (To learn more about this, click on "What happens if I die without a will?")
Other Simplified Probate Proceedings
There are other probate proceedings related to administering a decedent's estate but are too detailed for the scope of this discussion. As a brief example, other typical proceedings include Small Estate Affidavit, Muniment of Title Proceedings, and Dependent Administrations, just to name a few. When the person applying to be the personal representative of your estate initially meets with your attorney, it can be determined which proceeding is needed in regards to your assets and specific situation.
HOW DOES THIS PROCESS ALL BEGIN?
No formal "reading of the will"
The Probate court process and the administering of an estate can be an extremely foreign process. The first common misconception is the Hollywood style "reading of the will". These depictions in movies and TV shows is not actually what happens here in Texas. There is no legal requirement that such a formal reading occur. In fact, until only recently (2007 Texas legislative session), there was not even a requirement that you receive written notice that you were named in a will. Now, it is a requirement under Texas law to provide notice to all named beneficiaries in a will that is being probated.
Who Hires the Attorney
Usually, the person named as the Independent Executor in the will calls a probate or estate attorney to assist him or her with his duties as the personal representative of your estate. If there is no will, oftentimes the closest of kin (e.g., surviving spouse, parent of an unmarried adult, adult child of decedent, etc.) will work with an attorney to apply to the court to become the personal representative in the event that there is a need for administration. (If there is no Will, there are additional requirements and costs associated to probate the estate.)
Such person will meet with the attorney to discuss what type of administration is necessary and then after starts the court process by filing the proper documentation with the clerk of the proper court. No activity by the named Independent Executor should be taken until he or she is officially appointed by a Judge and the Judge officially appoints this person as Independent Executor in a formal written court Order Admitting the Will to Probate and Issuing Letters to such person.
No Pro Se Representation in regards to Estates of Decedents
This representative has to be represented by an attorney. They cannot represent themselves pro se. "Pro Se" means that you represent yourself. In regards to an estate, under the law you are not just representing yourself. You are representing "the estate". Even if you are the only heir, "the estate" is considered a separate legal entity.
Now that the will has been "probated", the administration process can begin. There should be no administration of an estate before a personal representative is actually appointed by the court. An Independent Executor, even though named in a will, does not have the power to administer an estate without the Court's approval. Once appointed, the representative (most commonly, an Independent Executor) will work closely with the attorney to meet court filing requirements, comply with notices to creditors, and in actually administering the estate property.