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Probate of a Will

 

When someone dies, the person named as independent executor of the decedent’s will must get the will “probated” in order to have the power to carry out the wishes that the decedent set out in his/her will as to who will inherit what and how with regard to probate assets.  This process is called independent administration.

The executor should seek the advice and assistance of an attorney to make sure all necessary steps are followed, since the executor has a fiduciary duty to the estate to carry out the instructions and meet the court’s deadlines regarding required filings.

Well-written Texas wills provide for the appointment of an independent executor who will serve without being required to post a bond.  Generally speaking, Texas’ probate process is efficient and not very costly when the will includes an independent executor.  

After the Application to Probate a Will is filed, there is a brief hearing during which the executor is questioned by his/her attorney before the judge.  The executor swears under oath that he/she will carry out the duties of executor.  When the judge finds that the executor is qualified to serve and that everything is in order, the judge issues letters testamentary.  

Letters testamentary is an important document from the court that proves to the world that the executor has the authority to carry out any actions necessary to gather the assets of the estate, sell assets, pay bills, set up trusts if those are created in the decedent’s will, and otherwise carry out the business of the estate.  Letters testamentary is what banks and title companies request, along with a death certificate, to close accounts, make investment decisions, sell properties, and so on.

The executor is required to make certain notifications regarding the probate of the will—to beneficiaries, creditors, and the public.  The executor must also draft an inventory of the estate and file it (or an affidavit in lieu of inventory if certain requirements are met) to complete the obligations of the executor to the court and the estate.

(If the will does not name an independent executor, then a dependent administration may be necessary.  A dependent administration is normally more costly and time-consuming.)