Probate & Estate Administration
- Probate is the process of:
- filing and proving the decedent's will in court,
- collecting and/or selling decedent's property,
- paying the remaining debts, and
- distributing property in accordance with the will.
The executor is responsible for carrying out the probate process. Our process is designed to guide you through each step as smoothly and quickly as possible. In any case where there is more than one person receiving property from the estate, Texas law requires the executor to be represented by an attorney.
- Cole Eckhoff has successfully helped clients navigate a wide range of estate-specific issues, including:
- temporary administration while will-contest is pending,
- probate of a copy of a will (when the original cannot be found after a diligent search),
- probate with the executor living outside of Texas (including appointment of a Texas agent),
- original probate in Texas when decedent lived outside of Texas,
- probate of a non-Texas will,
- probate of a will without a self-proving affidavit,
- probate as muniment of title,
- determination of heirship (when someone dies without a will),
- affidavit of heirship (alternative to probate),
- litigation against creditors within probate suit,
- eviction within a probate suit,
- probate appeals, and
- determination of heirship over four years since the death of the decedent.
Texas Probate Timeline
Step 1
Consultation (Determining whether Probate or Another Path is Appropriate)
The first step is to determine what property the person owned, whether they had a will, what debts remain, and whether probate is actually necessary. Some property passes directly to beneficiaries through beneficiary designations, survivorship agreements, Lady Bird deeds, transfer-on-death deeds, or other arrangements and may not require probate.
If probate is necessary, we determine whether the estate can proceed through independent administration, dependent administration, probate of a will as a muniment of title, determination of heirship, or another procedure.
Step 2
Filing the Probate Application
We file an application asking the Court to admit the will to probate and appoint the executor. If there is no will, we may need to ask the Court to determine the decedent's heirs and appoint an administrator.
Texas generally requires an application to probate a will or obtain letters to be filed within four years after death. There are limited exceptions, including circumstances in which an applicant seeking to probate a will after four years was not in default for failing to file sooner.
After the application is filed, the clerk issues citation, which generally must be posted for at least 10 days before the return day, so a probate hearing cannot occur immediately after filing.
Step 3
Probate Hearing & Appointment of Executor
After the citation period expires, we ask the Court to set the case for a probate hearing. At the hearing, we present the evidence necessary to prove the death, the Court's jurisdiction and venue (based on the decedent's place of residence or location of substantial estate property), the validity of the will, and the executor's qualifications.
If everything is approved, the judge signs an order admitting the will to probate and appointing the executor. The executor qualifies as required by law, and the clerk then issues Letters Testamentary, which allow the executor to deal with banks, title companies, financial institutions, creditors, and estate property. Before going to the bank, the executor or their attorney should file for an employer identification number (EIN) from the IRS, which generally can be done in a matter of minutes online. Get an EIN. The bank will require the estate's EIN letter to open an estate bank account.
Step 4
Notice to Creditors and Beneficiaries (Within 30-60 Days)
Within one month after receiving letters, the personal representative must publish the statutory notice to creditors in a newspaper of general circulation in the county where the letters were issued.
Within two months after receiving letters, the executor must send the required notice to known creditors whose claims are secured by estate property, such as a mortgage lender.
The executor may also send certain unsecured creditors a special notice requiring them to present their claims. If properly given, the creditor generally must present the claim before the 121st day after receiving the notice or the claim is barred (and the creditor may not seek to recover the funds allegedly owed from the estate), subject to the applicable statute and limitations rules.
Within 60 days of a will being admitted to probate, the personal representative must provide notice to beneficiaries. For the executor, we file proof with the Court showing that the required notices were given within 90 days of the will being admitted.
Step 5
Inventory the Estate (Within 90 Days)
Within 90 days after the personal representative qualifies, an inventory, appraisement, and list of claims must be prepared and filed unless the estate qualifies to use an affidavit in lieu of filing the inventory publicly or the Court extends the deadline.
Step 6
Managing the Estate, Paying Claims and Taxes
While the estate is open, the executor must manage, preserve and protect the estate property. Property at risk of damage should be insured. If necessary to pay claims, property may be sold, and creditors who have submitted valid claims are paid from the funds of the estate. After all claims have been paid, settled or barred, the executor may distribute property and funds which are not needed to pay any remaining taxes or other fees.
If the decedent earned any income during the last tax year of their life, the executor may need to file the last tax return of the decedent. If the estate has earned income since decedent's death, the executor may also need to file an income tax return for the estate.
Step 7
Distribution
Once the executor knows what property exists, has made provision for debts, expenses, taxes, and disputes, and is in a position to safely distribute the estate, property can be transferred to the beneficiaries according to the will or Texas inheritance law.
There is not a deadline requiring every estate to be distributed or closed within six months, nine months, or one year. The appropriate timing depends on the estate's assets, debts, tax issues, property sales, disputes, and other circumstances.
If the estate remains open, an interested person may demand an accounting after 15 months from the independent executor's appointment. If a proper demand is made, the executor generally has 60 days after receiving it to comply. Further accountings may be demanded each year.
There is not a deadline requiring every estate to be distributed or closed within six months, nine months, or one year. The appropriate timing depends on the estate's assets, debts, tax issues, property sales, disputes, and other circumstances.
If the estate remains open, an interested person may demand an accounting after 15 months from the independent executor's appointment. If a proper demand is made, the executor generally has 60 days after receiving it to comply. Further accountings may be demanded each year.
Step 8
Closing the Estate
After property has been distributed and the administration is complete, an executor may formally close the estate by filing the appropriate closing report or notice. The estate is generally considered closed 30 days after the closing report or notice of closing estate is filed.
What can be done to avoid or minimize the cost of probate?
- In many cases probate can be avoided. By using beneficiary designations, special deeds, or a trust, you may be able to pass all of your property without your heirs or estate paying unnecessary attorney fees. Call us at 361-579-2490 or read more on estate planning to avoid probate.