What is Probate?

Post by: Lesley Hempfling

The word probate refers to the court process by which a Will is deemed valid or invalid. Unlike other states, in Texas, the "probate process" is relatively simple, quick and cost effective. So, what does it entail?

After your death, the first thing that your loved ones will need to do is locate your Original Will. It is extremely helpful to those tasked with this job that they have access to your Original Will. If your Will is held in a safety deposit box at a bank or other institution, then make sure that arrangements for access have been made with the institution. If you store your Will in a home safe, make sure someone else has the code to access the safe.

Once the Original Will is obtained, the next step is to review it and determine who has been named Executor under the Will. The Executor is the person who will "probate" the Will with the assistance of an attorney (note in Travis County there is a strict policy that an Executor may not represent himself or herself in a probate proceeding). With the assistance of an attorney, the Executor will file the "Application for Probate" and the Original Will with the clerk in the appropriate county. After the Application has been on file for ten (10) days, you may request a hearing on your Application.

In a typical probate hearing, where no additional proofs to validate the Will are necessary, the Executor is the only person who provides testimony. While the testimony is formal in the sense that it is sworn to and provided for in the record, in most counties in Texas, the actual process is very informal. The Executor and his or her attorney generally stand right before the judge at the bench during the question-answer portion. When the testimony has concluded, the judge signs the Order on Probate and sends the Executor to the clerk's office to take his or her Oath as Executor and to receive "Letters Testamentary." What are these "Letters?" It is really a one-page piece of paper that is created and signed by the Clerk. The "Letters" provide the Executor with the power and authority to conduct the business of the estate.

What does it mean to conduct the business of the estate? Simply put, it is the Executor's job to gather the assets of the estate, pay the debts and distribute the remainder of the assets to the beneficiaries of the estate. These "Letters" allow the Executor access to bank accounts and other accounts that he or she otherwise would not have access to and also may grant other special powers to the Executor, including the power to sale real property. In essence, with the "Letters" in hand, the Executor has the ability to act in the same manner as the decedent could have during life.