Probating a Will


     The term "probate" refers to the various court procedures for transferring legal title of property from the estate of a person who has died (the "decedent") to their beneficiaries. Some property items, such as the proceeds from life insurance policies, IRAs, and tax-deferred retirement plans pass directly to the beneficiary designated in the plan. With those property items, there is no need to go through the probate process unless the probate estate is listed as the designated beneficiary. In Texas, the laws regarding probating a will are simplified as follows.

Application for Probate

     If the decedent had a will, the first step is to prove to the court that the will is valid. This is done by filing an application for probate of the will, for which the county clerk charges a filing fee of approximately $248. The application must be filed within fours years from the date of death or else the probate court cannot probate the will. Once the application is filed, the clerk of the court posts a public notice of the application.

Hearing on Application

     After the public notice is given, an oral hearing is held in court. At the hearing, the judge approves the validity of the will, and signs an order admitting the will to probate. In the order, the court also appoints a one or more persons responsible for distributing the probate estate and paying the debts. That person is known as the "executor." Most wills identify the person who is to serve as the executor.

Letters Testamentary

     Within 20 days after the hearing, the executor must take an oath, swearing to properly perform their duties as the executor. Depending on the terms of the will, the executor may also be required to post a bond before becoming qualified to serve as executor. After this qualification process, the executor receives from the court a document known as "letters testamentary." It is a formal document that the executor can provide to banks and others who require proof of the executor's authority to act on behalf of the probate estate.

Inventory and Appraisement

     Within 90 days after qualifing to serve as exectuor, the executor must file with the court an inventory stating the fair market value of each item of property in the probate estate as of the date of death. Certain property items are considered "non-probate" assets. The county clerk charges a fee of approximately $25 for filing the inventory.

Distributing the Estate

     The final step in the probate process is for the executor to pay any debts and taxes owing, and distribute the remaining property according to the terms of the will. This can be done without court approval in wills that provide for "independent administration." In other cases known as "dependent administrations," the executor must first obtain court approval, and possibly pay additional filing fees, before selling or distributing estate property.