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
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 Column: Overcoming the
Statute of Limitations on Probate
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.