Understanding Probate Attorneys in Texas

Probate is a legal process in which the estate of a deceased individual, called a “decedent,” is identified, collected, and distributed to the heirs of the decedent under the supervision of a Texas probate court.

In a legal consultation in Texas with a Texas lawyer, the lawyer would be able to explain the process in detail.

Probate is not necessary in the case of every decedent. It should be part of an individual’s estate planning to determine whether or not probate would be required for their estate. This is something an individual would want to discuss with their trust and estate lawyer.

In the course of the probate process, the following is accomplished:

• The legal validity of a will, if the decedent left a will, is established.
• All of the assets of the decedent are identified, located, and inventoried. A written inventory and appraisal are prepared for the court.
• Any taxes owed by the decedent or their estate are paid.
• All debts that are owed by the decedent or their estate are paid.
• The assets are distributed to the beneficiaries named in the will, if there is a valid will.
• The assets are distributed to the heirs of the decedent per the laws of intestacy in Texas, if there is no valid will.

If a decedent does not leave a valid will, they are said to be “intestate.” If a decedent does not leave a will, the laws of intestacy in Texas determine who inherits the assets from the decedent’s estate.

When a person dies intestate, the courts supervise the probate of their estate and make an official determination of heirship. This process results in identification of the decedent’s heirs and what their share of the decedent’s estate is.

Texas is a community property state, so an estate is distributed based on whether assets are characterized as separate or community property.

The probate court appoints a person who is called the “administrator for the estate.” This person is often an attorney. The administrator has the same authority as an executor and performs the same tasks with the goal of settling the estate.

Initiating probate requires someone, usually a relative of the decedent, to go to probate court and ask the judge to appoint an executor or an administrator for the estate. The executor or administrator is the individual who represents the estate in the probate process and ensures that everything is done according to the law.

Texas law requires a person who is the executor or representative of an estate to be represented by a licensed attorney.

They would specifically be responsible for these tasks:

• File a petition for probate in the probate court in the county in which the decedent lived.
• Include a death certificate for the decedent and, if they left a will, a copy of the will.
• Notify the beneficiaries named in the will
• Provide notice to creditors so they can present their claims for payment to the estate
• Locate, identify, and inventory all of the estate’s assets
• Pay the costs of the probate and the decedent’s legitimate debts from the estate
• Determine if any taxes are owed, complete tax returns, and pay taxes owed
• Distribute the assets to the beneficiaries named in the will or the heirs determined by the laws of intestacy.

At each stage of the process, documents must be prepared, filed with the court and distributed to interested parties who are entitled to receive notice of certain events.

Of course, conflicts may arise in the course of probate. An individual or entity may claim that the will is not valid. Creditors may make claims for payment that there is reason to contest. There may be questions about the amount of taxes owed.

In situations in which conflicts arise, the personal representative must represent the interests of the estate and may have to hire a lawyer or lawyers to help resolve the issues.

What Is a Probate Attorney?

A probate attorney is an attorney who is hired by an executor or personal representative to represent them, the executor, in carrying out all the tasks that the executor is required to perform.

An executor or administrator may not know what needs to be done or how to go about doing those things. That is when they need the help of a probate attorney. A probate attorney is an attorney who knows the probate process and how to complete it. They are familiar with all of the technicalities and legal documents required to complete probate.

What Does a Probate Attorney Do in Texas?

A probate attorney represents the executor or administrator of an estate and manages the probate process for this person. A probate attorney’s client is the executor or administrator and their obligation is to serve the interests of the estate and handle it as required by law.

How Much Does a Probate Attorney Cost in Texas?

As noted above, a probate attorney in Texas is usually going to be paid out of the assets in the estate. They do not all charge in the same way for their services. Some charge an hourly fee and others a flat fee.

The location of the probate and complexity and size of the estate are factors that would affect their fee.

How Long Does the Probate Process Take In Texas?

A standard probate would take from 6 months to a year if nothing unexpected takes place.

However, probate could possibly take much longer. If a decedent has a large estate and left a will which disinherits someone who believes they should have inherited money from the decedent, the disinherited individual might challenge the validity of the will. It could become necessary to have a trial, and this could prolong probate by many months.

An individual must have standing to contest a will and generally 2 different kinds of people qualify as follows:

• Past and Current Beneficiaries: Beneficiaries are individuals or entities who stand to inherit money or property from the estate of the decedent, because they were or are named in the decedent’s will. They have the right to challenge the will, if they are a beneficiary in a current will or if they were a beneficiary in a former will, but were excluded from the current will.
• Individuals Who Would Have Inherited by Law: Individuals who would have inherited from the decedent under the laws of intestacy but were not named in the will may contest the validity of a will. Individuals who would meet this requirement would probably be close family relatives, e.g., siblings, who might have inherited under the laws of intestacy, which govern how an estate is to be distributed if a decedent does not have a valid will.

To contest a will, an individual must file a claim in probate court stating the grounds on which their claim is based. Legally recognized grounds for contesting a will are as follows:

• Invalidity of the Will: The will is not legal per the laws in Texas that establish the requirements for a will valid, e.g., it does not have the required number of signatures from witnesses to the will’s signing.
• Decedent’s Lack of Mental Capacity: The decedent was not of sound mind when they made the will.
• Fraud, Duress or Undue Influence: The decedent made the will or included some provisions as a result of fraud, duress or undue influence. Basically, this would mean that the decedent made the will because they were in some way defrauded or forced by threats or the influence of someone who used their power or authority over the decedent unfairly.
• Lack of Clarity: an individual might argue that the will is not sufficiently clear to allow a court to distribute the assets.
• New Will: An individual may present a newer will that they claim supersedes the older document and invalidates it either in whole or in part. They may claim that the decedent revoked the older will. Or they may show that the decedent made clear they did not want the old will to be followed.

Should I Hire a Probate Attorney?

If you have been named the executor of an estate in Texas, you want to consult a Texas probate attorney. LegalMatch.com can put you in touch with an attorney who is familiar with the probate process and can guide you through all of the necessary steps smoothly and as efficiently as possible.