How Does Probate Work? (Part 1)

San Antonio Express-News July 17, 2007 How Does Probate Work? Initiating the Process copyright 2007, Paul Premack
Dear Mr. Premack: People seem to be so afraid of the probate process. I have been an executrix three times. Each time I had a lawyer, and had an accountant to help me with tax issues. The actual probate process was not that difficult or expensive. I had to inventory the property and get some appraisals. I followed the Wills explicitly. In many ways, the tax part was more difficult than the probate. Can you give a general overview of the probate process to familiarize others with it? – R.S. You are correct to recognize the difference between probate versus tax issues. Probate is a legal process under state law, designed to review the validity of the decedent’s Will and empower the Executor to settle the estate. Taxes, in this context, are due under federal law. They may be income taxes due from the last year of the decedent’s life, taxes on earnings during the probate, and/or estate taxes. I am starting from the assumption that the decedent had a Last Will and Testament. Ideally, that Will contains provisions allowing the Executor to serve without bond and without court supervision. In that case, the probate is called “independent administration.” Some Wills do not contain wording to eliminate those requirements, and of course some people don’t have Wills at all when they die. In those cases, the probate is termed a “dependent administration.” In your letter, you are describing independent administration. Your attorney will prepare and file an application for probate informing the court of the death, the nature of the Will, and of the fact that you are asking to become Executor (among other things). The application and the original Will are then filed with the County Clerk’s probate office, where a case number and a hearing date are assigned. The law requires that notice be posted by the Sheriff or the Constable, informing the public of the pending probate and the date it will be heard by the court. Any interested party may examine the Will at the clerk’s office and may file appropriate responses (but Will contests are actually quite rare). When the day for the court hearing arrives, the attorney and pending Executor appear in court. Testimony is taken regarding the Will’s validity and the fact of the decedent’s death. The court determines whether it has jurisdiction, and whether venue is proper (is this the right court to be hearing the case, or should it be in a different county?). The pending Executor must establish that he/she is not disqualified from serving – which means that he/she is not a convicted felon, is not incapacitated and is not “unsuitable”. In the Bexar County probate courts, all that evidence is reduced to writing in the form of an affidavit which is signed in open court by the Executor swearing the information is true. In other counties (some with less hectic dockets) the Judge takes verbal testimony under oath regarding those issues. When the Judge is satisfied that all requirements of law have been met, an Order is signed that admits the Will to probate and activates the Executor’s authority. If the Will waived bond, the Order will also dispense with bond. Otherwise, the Order will require that bond be posted by the Executor before authority is granted. If so, the pending Executor and the attorney will visit the bonding agency (an insurance agency of their choice) to arrange and pay for the bond. When bond and the Executor’s oath of office are filed, the court clerk can issue letters testamentary to the Executor. There are more steps, and they will be the topic of next week’s column.
Prior Week: Irrevocable Living Trust Next Week: How Does Probate Work, part 2
Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney. You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.