Who has legal authority to start a probate?

Dear Mr. Premack: I was notified by an attorney that he was hired by 3 of 5 siblings to probate my mom’s Will. If I do not agree with the hiring of this attorney, what are my options? JMC

According to the Texas Probate Code, a Will can be offered for probate by the nominated Executor or by any interested party. Any of your mother’s children would likely qualify as interested parties. But when an interested party hires an attorney to file an application for probate of the Will, they are limited to asking the court for two things: 1) to accept the offered Will as the “last Will” of the decedent, and 2) to empower the nominated Executor to handle the estate’s affairs.

It would be truly unusual for an attorney to accept multiple clients (3 of 5 siblings) in a probate matter. Generally, attorneys like to have one clearly defined client to whom they are responsible. Again, generally in a probate proceeding, that client is the nominated Executor of the estate. Thus, it may be that “3 of 5” siblings concurred in hiring this attorney, but the attorney should have identified only the nominated Executor as the actual “client”.

What can you do? First, if you have legal grounds to do so, you could contest the Will. A contest does not stop that attorney from representing his client, so it does not really achieve your goal. Second, you could agree that the Will is acceptable but that the sibling nominated as Executor should be disqualified. You could hire your own attorney to prove that the nominated Executor does not meet the legal standards for serving in that role. Again, this does not stop that attorney from representing his client and does not really achieve your goal.

When you say you “do not agree with the hiring of this attorney,” what is your exact objection? Have you had negative experiences with that attorney? Do you feel that attorney charges too much? Do you have a friend-attorney you wanted the family to hire for the probate? Your motives for not wanting this attorney may or may not sway your siblings if you speak to them. If you can convince them that you have sound reasons for wanting a different attorney, perhaps they will ask this one to withdraw and substitute other counsel more to your liking. Failing that, the decision really belongs to the person nominated as Executor. You just need to go along for the ride, and let the legal process do its job.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, April 23, 2012


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Paul Premack has been a Board Member and has served as President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) and is a Member of the Washington Chapter of NAELA. He is *Certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in the States of Texas and Washington and handles Estate Planning and Probate in Texas and Washington, including and Bexar County and King County Probate, Wills, Living Trusts, Durable and Medical Powers of Attorney, and Elder Law. Premack writes the legal column for the San Antonio Express News which is syndicated in other Hearst Newspapers around the USA.

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