How to Probate a Texas Last Will & Testament

By Beverly Bird

A will may be probated in Texas in one of two ways: through an independent or a dependent administration. Independent administration takes place when the testator, or person who died, specifically states in her will that she does not require her chosen executor to have court supervision. Otherwise, a dependent administration is necessary. Even independent administrations require some court involvement, however.

Step 1

File an application for probate of the will with the probate court. The application must include the original will and state what type of probate is required. The court will then post a public notice in the newspaper informing interested parties of a hearing date to either approve or deny your appointment as executor. You can hire an attorney who can draft the application for you, or, if you prefer, you can ask the county clerk of the probate office for the appropriate form.

Step 2

Appear in court on the appointed date. A probate judge will confirm that the will is valid and that it meets all of Texas’s requirements. She will also take testimony from you to determine that you are qualified to act as executor. Generally, this involves confirming that you have no conflict of interest in representing the decedent’s estate, that you are mentally competent and have never been convicted of a felony. The judge then issues an order admitting the will into probate and gives you “letters testamentary” or authorization to act legally on the estate’s behalf.

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Step 3

Send a copy of the will to each beneficiary named in it along with a copy of the court order admitting the will into probate. You have 60 days to do this after the date of the order.

Step 4

Prepare a notice to the estate’s creditors and submit it to the local newspaper for publication. Section 294 of the Texas Probate Code gives you a month to do this after you receive your letters testamentary. You must also send written notice to any secured creditors, such as mortgage companies or auto lenders. Unsecured creditors, such as credit card holders, have four months to submit a claim for payment of whatever the decedent owed them. Once you receive a claim, you have 30 days to either pay it or reject it. If you reject it, the creditor can ask the court for a hearing to try to have your decision overturned.

Step 5

Prepare an “Inventory, Appraisement and List of Claims” for the estate. This is a list of all the decedent’s assets, as well as all of the decedent’s creditors that you know about. In some cases, such as with real estate, you might be required to get an appraisal to determine the value of the asset at the time the decedent died. You have 90 days to do this after you take office. An attorney can help you prepare this if you have questions about what must be included.

Step 6

File a personal income tax return for the decedent with the IRS for the year in which he died. Larger estates might also require you to file a tax return for the estate.

Step 7

Distribute the balance of the estate to the beneficiaries according to the terms in the decedent’s will after you have paid all taxes and creditors. If the deceased bequeathed any real estate, you must also have new deeds prepared and filed, changing the ownership. Other titled property, such as automobiles, will also have to be re-titled.

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References

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