The Probate Process: Getting Ready for Court (Part 1 of 3)
Probate is the process of handling the estate of a loved one who has passed away, i.e. reviewing and presenting a will to a court (or stating that there is no will and determining the legal heirs), naming a personal representative (if one is necessary), handling claims, and distributing any remaining assets to the beneficiaries named in the will (or heirs if there is no will). Unfortunately, the preceding sentence can be a grossly oversimplified version of the process. If a loved one thought ahead and had an estate plan, and most importantly a Will, then Texas makes the process easy. If there was no planning, all is not lost so long as the heirs can all agree, although there may be a few additional steps. However, if there was no planning and/or the parties cannot work together, then probate can be a convoluted process that can span months or even years.
In this 3 part series we will give you all the information you could ever want to know about the probate process from preparing the will and filing the necessary applications to attending hearings. By the end of the series you’ll be fully prepared when you become involved in a probate process.
Pick a Good Probate Attorney
This may seem like a no brainer and a little bit of self-promotion, but it really makes a difference. When you get sick, who do you go see to diagnose what you have and get you the best care and the most positive outcome possible? A specialist. The same should be true for a probate proceeding. A really good probate attorney is going to be able to “diagnose” the Will and know the true extent of the work involved in carrying it out.
Say a father dies and once you get a hold of the will you find out he changed it very close to the end so that everything goes to one child to the exclusion of all the other siblings. A good probate attorney will know that the will is likely going to be contested. But more importantly they may possess the necessary skills and expertise to represent you in court or they can recommend a good estate litigation attorney.
Location is also a very important factor in choosing an attorney. Where the deceased lived or where they were domiciled usually determines where the estate will be probated. An attorney that practices in that county will have acute details about the rules in that area and the judges who you may come across in your case.
Getting to Know the Deceased and the Applicant
Just like a doctor has to master bedside manner, it’s important for an attorney to know you, your family, and the nature of those relationships to help them ensure the best outcome possible for you and your loved ones. Often lawyers will have applicants in a probate process fill out a formal questionnaire and conduct an official conference with key players who may be involved in the probate process.
Who is the deceased? Who is the applicant? What are their intentions? And probably the most important question: was there a Will? This is the first major fork in the road of the probate process: if there’s a Will then there will be an application to probate the Will. If there’s no Will then it’s an entirely different process and application: one to determine heirs and open an administration.
Paperwork: Will, Death Certificate, Application
Locating the Will Hopefully the Will is in an easy to locate place like a safe or fireproof container inside the decedent’s residence. If the will is in a safety deposit box at a bank to which you don’t have access, your attorney can file a motion to obtain access. This process takes a few weeks and can delay filing the necessary application. Ideally you want the original Will and not a photocopy — copies are okay too; however, there are additional proof requirements so an original is always preferred.
Obtaining a Death Certificate As morbid as it seems, the court likes to know that the deceased person has actually passed away. The easiest way to do this is with a death certificate which acts just like a birth certificate and verifies the death of the individual. The death is reported to the local vital statistics office and a certificate can be obtained there. Some courts actually require that an applicant file a copy of the death certificate with the court, while others do not. Yet another nod to hiring an attorney who is familiar with the local rules of that particular court.
Filing the Application There are two main types of applications: If there’s a will, then your lawyer will generally file an application to probate the Will. This lets the court know a Will exists and you want to get straight into naming an executor and distributing assets.
However, if there’s no Will then you’ll be filing an application for an administration and an application to determine the heirs. This is a longer procedure and involves the appointment of another attorney by the court to ensure that all heirs have been named in the application.
Once either application has been filed then the initial process is complete and your interactions with the court begin: attending hearings, naming an executor (when there is a Will) or an administrator (when there is no Will), and distributing assets. In Parts 2 and 3 of this series we’ll discuss the intricacies of these processes and provide valuable insight that can protect you and your loved ones in this difficult process.
Consult An Experienced Attorney
We always recommend you seek the counsel of an experienced estate planning or estate litigation attorney if you are beginning the probate process. A qualified estate attorney can help you make the right decisions for your family and everyone involved. At Romano & Sumner, we pride ourselves on our ability to assist our clients in navigating complex legal processes like estate planning, creating a will and probate of an estate. If you have any questions, please feel free to contact us today.