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.
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
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