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A Typical Probate & Independent Admin

What exactly does it mean to probate a will? Probate is the act or process of presenting the will of a deceased person to the court for official recognition of the document as a valid expression of the decedent’s intent for disposition of his/her property. While there are limited exceptions, generally in Texas a will must be presented to the court for probate within four years of the date of death. As a practical matter most wills are presented for probate within a month or two of the decedent’s death.

In Texas this process is started by filing the original will along with an application requesting its admission to probate with the county clerk’s office. Most often filing is in the county where the decedent was domiciled at the time of death. Fees assessed by the county clerk must be paid at the time of filing and such fees vary from one county to another. Once the will has been filed, there is a minimum statutory time period (approximately 10 days), which must elapse before a hearing can be held.

A hearing before the court is required. Normally these hearings are quite brief and only one appearance before the court is necessary for most estates. After listening to testimony and reviewing the will an order is signed by the judge admitting the will to probate and appointing the independent executor. Once appointed, the independent executor must then qualify by taking the oath of office and posting bond, if not waived by the decedent’s will. Upon qualification the independent executor is now in a position to act on behalf of the estate.

The clerk of the court will issue letters testamentary to the independent executor. Letters testamentary assist the independent executor in collecting and transferring assets of the decedent’s estate. These documents acknowledge the authority of the person appointed by the court to act on behalf of the estate. When letters testamentary are presented to banks, depositories, transfer agents, and title companies these third parties know that the person presenting the letters has been before the court; that the court has appointed this person to be in charge of the decedent’s estate; and that this person is the appropriate person to whom the decedent’s property should be released.

Creditors of the estate must be notified of the appointment of the independent executor and the address to which claims may be presented. Different notices may be required depending upon the type of claim a potential creditor may have against the estate. Generally unsecured creditors are given notice by publication in a local newspaper of general circulation within 30 days of qualification. Secured creditors are given notice by certified or registered mail within 60 days of qualification. If taxes are owed to the State of Texas, notice must be given to controller of public accounts by certified or registered mail within 30 days of qualification. The independent executor must then receive claims presented by creditors, classify such claims in order of priority as directed by the Texas Probate Code, and allow and pay, or reject such claims. All of this is done without any application to or action by the court.

Within 90 days of qualification the independent executor must prepare and file with the court an inventory, appraisement and list of claims of the estate. If applicable, the homestead and property exempt from claims of creditors must be set aside by the independent executor. For larger estates, within nine months of the date of death, the Federal Estate Tax Return and State of Texas Inheritance Tax Return must be filed and any tax due paid. Thereafter, the independent executor may proceed with final distribution and closing of the estate.

Probate Attorney, Gregory G. Heffelfinger
legal counselor
The loss of a family member is a difficult enough situation. Compound that loss with the stress of having to deal with courts, banks, insurance companies, retirement plan administrators, and creditors and the situation may seem overwhelming. Some simple planning can greatly reduce the stress and make an overwhelming situation at least manageable during this difficult time. I often tell my clients that if they never have to see an attorney for any other reason, they should at least see an attorney to have a will prepared. In my opinion, with very few exceptions everyone needs a will.

While planning for death is something none of us like to think about, the consequences of procrastinating and having no will or estate plan may place an even greater emotional and financial burden on your family. Below, you will find some helpful information. The information presented is not intended to take the place of your attorney’s counseling and recommendations, but rather is intended to provide you with some “nuts and bolts” information in a very readable format.

Papers and articles to assist you on legal issues
A Typical Probate and Independent Administration
You Already Have a Will Whether You Know it or Not
Essential Provisions of a Texas Will
Independent vs. Dependent Administration
About Gregory G. Heffelfinger

Gregory G. Heffelfinger is an attorney who has practiced law in Houston, Texas since 1983. He is a member of the of the State Bar of Texas, State Bar of Michigan, and licensed to practice before the United States District Court for the Southern District of Texas. Since 1983 Mr. Heffelfinger has provided legal counseling in wills, probate and estate planning to families utilizing the services of Earthman Funeral Directors.

Mr. Heffelfinger can be reached via email or call him at (713) 722-7163.

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Earthman Funeral Directors & Cemeteries • 13102 North Freeway • Houston, Texas • 77060 • (281) 443-0063

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