Probate is a process by which an administrator (personal representative or executor) of an estate (the decedent’s assets), distributes the estate’s assets to the beneficiaries. In Texas, probate is handled by the Texas State Probate Office.
What does probate process mean?
Probate definition: Probate is the legal process of validating a deceased person’s will and administering their estate. Each state writes its probate law.
Probate includes identifying and inventorying the decedent’s assets, paying their debts, taxes, and final expenses, and distributing the remaining assets to their designated beneficiaries.
When someone passes away, the probate court must step in to ensure that their wishes are properly carried out. This includes validating the will, appointing a personal representative (or executor), and making sure that all creditors are paid from the deceased’s assets. During probate, a personal representative — either appointed by the court or named in the will — carries out these duties and oversees the entire process.
How Much Does a Lawyer Charge to Probate a Will?
Often, people are afraid of drawing up a will and tackling estate planning because of the perceived high cost. However, I like to view it as an investment in my peace of mind. Tomorrow is never promised.
Consulting with multiple attorneys and discussing their fee structures can help you make an informed decision while choosing the right probate attorney for your needs.
In general, the attorney may charge an hourly rate, flat fee, percentage of the estate, or a retainer fee. A detailed explanation about the average cost of a probate lawyer can be found at weareatticus.com. They provide several examples and emphasize the variances between states.
Nothing on LordandHearth.com should be construed as legal advice; please consult a legal professional to guide your family through the probate process.
Steps to probate a will in TX
- Step 1: Petition the Court
- Application must be filed with the proper court in the county where the decedent lived.
As of January 1, 2022, the filing fees for Dallas County Probate Court are indicated to be $360.
- Step 2: Posting
- There will be a waiting period of around two weeks before a hearing takes place to review the application. During this time, the county clerk will put up a notice at the courthouse informing everyone that a probate application has been filed. This notice is meant to let anyone who wants to challenge the will or how the estate is being handled know about it.
- Step 3: Will Validation
- A judge specializing in Texas probate law will preside over a hearing to officially recognize the death of the person who passed away.
- During this hearing, the judge will also confirm whether the deceased person had a valid will or if there was no will at all.
- Finally, the judge will appoint an administrator or confirm the person named as executor of the estate.
- Step 4: Inventory of Assets
- The executor must catalog and report to the county clerk all the assets held by the estate within 90 days of appointment.
- If the estate doesn’t have any outstanding debts, except for secured debts, taxes, and administration expenses, and if the will of the deceased person doesn’t require the submission of an Inventory, then the executor has the option to submit an Affidavit in Lieu of Inventory.
- Step 5: Identify Beneficiaries
- Probate court must determine heirship if beneficiaries are not identified.
- A secured creditor or a qualified representative of the deceased can also initiate these proceedings as parties interested in the estate.
- Step 6: Notify Creditors
- Creditors are notified of a person’s death by the estate’s executor and given the opportunity to file claims against the estate. This can be legally accomplished in Texas with a notice published in the local newspaper.
- Step 7: Resolve Disputes
- Mediation is the suggested course of action for resolving conflict with Texas probate.
- Step 8: Distribute Assets to Beneficiaries
- Once the debts are resolved and disputes are cleared up, remaining assets are distributed.
Who can be chosen as the executor?
An executor is a person appointed to collect and distribute assets, pay debts and taxes, and carry out the instructions outlined in the deceased’s will. The executor is most commonly chosen by the deceased in their will; however, if there is no will, the court assigns an administrator to handle these responsibilities.
When choosing an executor during estate planning make sure to pick someone trustworthy and reliable who can undertake all of the tasks that are associated with settling an estate.
This person should be organized, have financial knowledge, and exhibit good judgment. In some cases, they may need to hire professionals such as lawyers or accountants to assist them with certain tasks.
In addition to complying with the wishes of the deceased, an executor must also abide by laws and regulations related to probate.
An executor has a fiduciary duty to act in good faith when managing the assets of an estate for the benefit of its beneficiaries.
Can the executor sell a house that is in probate?
The executor / personal representative has the legal authority to enter into a sales contract for the real estate while the probate process is ongoing. However, the proceeds from the sale will not be distributed until the probate process has been completed.
It is possible to sell a house in probate when there is open communication and transparency among the beneficiaries and the probate attorney involved.
If you are interested in selling a property (in any condition),reach out to Lord and Hearth today. We can also negotiate upkeep of the property for the duration of probate to preserve the home and avoid code violation fees. My professional network has you covered!
An executor has a fiduciary duty to act in good faith when managing the assets of an estate for the benefit of its beneficiaries.
Professional Executor Service
When it comes to appointing an executor to manage the probate process, some people may opt to hire a professional executor service. The professional executor can bring objectivity into the equation since they have no personal stake in how assets are distributed or managed. They’re able to remain impartial throughout the entire process which makes them ideal for cases with complex estates or contentious beneficiaries. Professional executors are experienced and knowledgeable in estate law and can provide valuable advice during the process.
Fortunately, many banks offer estate planning services which include professional executor services. Legal fees play a crucial role in the accessibility of quality legal services. In some situations, such as in a civil lawsuit, an individual can appear in court to represent themselves. This is known as appearing pro se.
However, in Texas, an individual isn’t allowed to appear pro se in a probate proceeding where they seek to be appointed executor of an estate for someone who has died.
Section 81.102 of the Texas Government Code prohibits an individual from engaging in the practice of law unless the individual is a member of the state bar (i.e., passed the Texas Bar Exam).
The Texas Government Code defines the “practice of law” as “the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court” (Section 81.101(a), Tex. Gov. Code).
There are rare situations when a person may, without the assistance of the court or court staff, proceed without legal counsel. For example, if the individual is:
- Thesolebeneficiary offering a will for probate as a Muniment of Title;
- A non-corporate creditor of a probate or guardianship estate;
- A non-corporate party in an ancillary civil action;
- A guardian filing an Annual Report of the Person; or
- Other actions at the discretion of the Judge.
