The Probate Process

Probate is the legal process of settling the estate of a deceased person and transferring assets to the proper heirs.  It generally involves petitioning the Court to appoint a personal representative, called an “Executor” or an “Administrator”.  Once appointed, this person becomes responsible for managing the estate.

State law, local court rules and the terms of the Will govern the representative’s actions and decisions in this process.  It can be complex and confusing for those who are not experienced with it.  Accordingly, most probate courts in Texas require a personal representative to be represented by a qualified attorney.  The role of a personal representative is a fiduciary role – meaning that the personal representative is accountable to the Court, the heirs and the creditors for the manner in which they manage estate affairs.  They may incur personal legal liability if they make a mistake. Therefore, we urge all potential estate representatives to seek competent legal advice.  Mistakes made during the probate process can be costly and sometimes irreversible.

Basic Tasks involved in Probate

There are several different types of probate.  The type of probate needed will depend on many factors – including the size of the estate, the type of assets held by the estate, whether or not the estate owes any debts and whether or not there is a valid Will.  Generally, however, the probate process includes:

  • Petitioning the Court. The initial petition begins the probate case and asks the Court to validate the Will (if there is one) and appoint a representative.  After the petition is filed, the Court will hold a hearing.  The purpose of the hearing is to prove the validity of the Will, the necessity for administration and to appoint a representative.
  • Notifying creditors of the estate. The appointed representative is required to publish a notice to creditors in the newspaper that informs them that a probate action has been commenced and that they must file a proper claim if they wish to be paid.  Secured creditors must be notified by certified mail. 
  • Notifying beneficiaries of the estate. If there is a Will, the representative must notify all named beneficiaries personally in writing. 
  • Preparing and filing an Inventory, Appraisement and List of Claims with the Court. An inventory is a detailed list of all the assets of the Estate.  The representative has 90 days after being appointed to prepare and file the inventory.  If there are no outstanding debts, the representative may file an “Affidavit in Lieu of Inventory” instead.
  • Evaluating and paying valid claims against the estate.  The representative must evaluate all claims presented and either pay them or properly reject them.  This task requires great care as the representative has a legal responsibility to both the creditors and the heirs.  Wrongly rejecting – or paying – a claim can result in liability.   
  • Disbursing the assets of the estate.  After all debts have been presented, evaluated and paid or rejected, the representative then disburses the remaining assets to the heirs.

Although the probate process can be complicated, an experienced attorney can help guide you through it.  We strive to make the process as easy as possible for the representative while protecting them from potential liability.

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