In a probate case, you have the applicant, who is the person filing the application for probate either to probate the will as muniment of title or to probate the will to be named as the executor or administrator of an estate. This can be the person named in the will or it can be anyone interested in the estate. In rare cases, a creditor is interested in the estate and they will actually put up the estate in probate just so they can get paid.
When someone brings in a will and hires us to probate it, we represent that person in their capacity as the applicant and the personal representative of the estate. We do not represent all of the other beneficiaries under the will because they can be at cross purposes with each other. We generally don’t have adverse parties. The judges are sticklers when it comes to estates because they’re actually personally liable, to some extent, for an estate that’s not administered correctly. You can have a will contest, at which point we might represent a beneficiary who is contesting the will that someone else has put forward.
If there wasn’t a will, you would have an ad litem attorney, who would be representing any unknown heirs. He’s the one who finds the heirs because when you don’t have a will, you’re doing a determination of heirship. Someone has to stand in place of those heirs to speak on their behalf, even though we don’t know who they are yet.
Creditors file claims and part of what we can do, as an attorney, is send out notices to those creditors. If they don’t respond, then we deny any claim that they file or negotiate with them based on the assets in the estate. Depending on the facts of the case, we may have to bring in other people, such as disinterested witnesses, to testify about the decedent. Medicaid estate recovery for the state could, if your loved one had to use Medicaid for long term care, come in and that can cause issues.
Can You Provide An Overview Of The Probate Process In Texas?
There are three types of probate. There is muniment, with a will, and without a will. The first step is the relative of the person who died comes into our office. We analyze whether there’s a will or not. Is it a valid, self-proved will under the laws of the state of Texas? Or is it going to need some additional testimony for prove up? What are the assets? What are the debts? Which kind of probate are we going to need? What kind of administration of the estate are we going to need? We then file the appropriate application. If they have a will, we can opt for what’s called muniment of title or for letters testamentary. If there’s not a will, there is determination of heirship and letters of administration. I draw up the application and electronically file it with the probate court.
I have to deliver the original will to the court. I have to wait a minimum of 10 days after it is accepted by the court before I can schedule the hearing. That’s considered the public posting period. Then, we can schedule a hearing to prove up whatever is required for that particular type of probate. When there’s a determination of heirship, it takes longer because there’s an attorney ad litem who has to file a report before we can go to hearing. Either he either agrees with us on who the heirs are or puts forth some other plan. Generally, from the time I file the application, it takes 30 to 45 days to get to a hearing. It can take much longer. We go to the hearings and the appropriate testimonies are given. Letters testamentary or letters of administration are issued after the judge signs the order and then we gather up the assets to pay the debts and distribute what’s left.