The Probate Process when a Decedent dies testate – meaning, WITH a Will
What Do I Do With a Will After Someone Dies? What Happens to the Will?
Following the death of a loved-one, after the funeral and once the initial grieving has begun to subside, the next thing you should do is search for all Wills of the deceased person referred to as the “decedent”. Upon finding a Will or multiple Wills, the next thing you should do is contact a Wills attorney because the LAST Will and Testament must be admitted to probate in order to make it binding. If you cannot find a Will or the person dies without a Will, then you will need to file to have the decedent’s heirs determined, which is the subject of another blog.
Hire an Attorney
Because the Decedent’s Estate is not the person applying (asking) to have the Will admitted to probate (the “Applicant”), the Applicant cannot represent himself, herself or itself. To do so, in Texas, is considered the unauthorized practice of law. You have to hire an attorney when dealing with an estate. You should hire an attorney that practices in the Probate Courts; many attorneys believe probate work is “easy” and represent they know how to guide you through the process. But, as a general proposition, it is not as easy as they think.
An experienced probate attorney is key to making your case with the probate court system. First, an attorney practicing in the probate area will know the court staff, which helps. But, most importantly, an attorney with experience in probate will know all the requirements to prove-up the Will at the hearing, how to get the Independent Executor qualified, all the duties and responsibilities of the Independent Executor, i.e., he or she will know how to advise the Independent Executor.
The Probate Process – Application for Probate & Dependent Relative Revocation
Admitting a Will to probate is the process in which the Court determines which of the decedent’s Wills is valid. It can be very simple – almost perfunctory – if there is no dispute, but it can be extremely complicated if competing Wills with differing dispositions are presented or if a Will Contest is filed. All the Wills must be presented and the Court determines and declares, which among them is the decedent’s LAST valid Will and Testament. For instance, if there are multiple Wills, but the last one signed is not valid, then it is as if it was never signed and the next previous one, in most instances, is probated under the doctrine of dependent relative revocation. Dependent relative revocation promotes the public policy of Texas creating a presumption that a person with a Will or multiple Wills intended to die testate – meaning, to die with a Will. Application dependent relative revocation follows that if a Will is found to be invalid, then, unless it is separately proven the testator did not want a previous Will to be admitted to probate under any circumstance, then the next previous valid Will should be admitted to probate.
As each Will falls, the next previous one is considered until the Court gets to one that is valid and should be probated. In one of our will contest jury trials, the Court probated a 1994 Will of the decedent after a jury set aside fourteen subsequent Wills and Codicils as invalid. This is the exact reason why Texas law requires all Wills to be tried together. Can you imagine having fourteen trials over each separate document? Judicial economy dictates one trial to determine one Will valid.
The Probate Process – Notice & the Hearing
After you have hired an attorney to seek probate of a Will, he or she will represent you as an “Applicant”. Your attorney will file an Application for Probate and for Issuance of Letters Testamentary and the original Will is submitted to the Clerk with the Application, but is not filed. The Application must be filed in the county of proper venue, which, most often, is in the county where the decedent had his or her domicile and fixed place of residence when he or she died.
The filing fees and court costs, which must be paid by the Applicant at the time of filing varies from county to county, but, typically, cost around $300.00, which includes the fee for posting notice. Posting notice means to prepare a Citation and post it – literally, staple or affix it – on the courthouse bulletin board in the county of proper venue. The law requires that a Citation be posted from the date of filing of the Application until the Monday after the expiration of ten (10) days. The Citation must be specific about the relief requested and the posting of notice the running of this time is jurisdictional, which means the Court cannot hear or rule on the Application until that time runs. The court can require additional notice that it deems appropriate under the circumstances of the case. The posting of notice is notice to the world that the probate for this decedent is going to happen and gives all “interested persons” a chance to enter their appearance in the case, be heard at the hearing or file a Will Contest or different Will for probate. An “interested person” is defined in the Texas Estates Code as follows:
Sec. 22.018. INTERESTED PERSON; PERSON INTERESTED. “Interested person” or “person interested” means:
(1) an heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate being administered; and
(2) anyone interested in the welfare of an incapacitated person, including a minor.
Following posting and after the waiting period, the Court will hold a hearing to “prove-up” the death, jurisdiction, the domicile and fixed place of residence of the decedent to set venue and the validity of the Will (that it was executed with formalities and solemnities required by law at a time when the decedent had testamentary capacity), that the Will was never revoked and the qualifications of the person named as the Independent Executor. It is the Applicant’s burden to prove-up this evidence. The presentation of the latter evidence is referred to as a “prove-up hearing” or proving up the Will. If the formalities and solemnities have been proven by a self-proving affidavit, then that requirement may be dispensed with. By statute law, the testimony presented at the prove-up hearing must be reduced to writing. Reducing the testimony to writing is usually done by presentation and submission of a written proof of testimony that the witness signs during the hearing before the judge, an associate judge or the judge’s administrative assistant after giving the testimony. It can also be done by having a court reporter take down the testimony stenographically and then inserting a printed transcript of testimony into the record; the latter is more rare because it is cumbersome and adds expense.
The court then signs an order admitting the Will to probate and appointing an independent executor. Once the Order Probating the Will is signed, the probated Will is determined to be valid and the law then recognizes a presumption of validity of that Will – meaning, the probated Will is presumed to be the valid Last Will and Testament of that Decedent to the exclusion of all others. This presumption then shifts the burden to any Will Contestant to prove the Will found to be valid is actually invalid.
Appointment of Independent Executor
As part of the process of probating a Will, the court will appoint the Independent Executor named in the Will, assuming the person named is qualified and not disqualified. Sometimes a testator/decedent will appoint a bank or financial institution to serve as Independent Executor; in such cases, qualification is, typically, not an issue because such institutions are financially capable of paying for or covering for their own mistakes. So, at the hearing to probate the Will, the Court also appoints an independent executor of the estate and that The person or entity appointed as Independent Executor “steps-into-the-shoes” of the Decedent and can, generally, do with the Decedent’s property everything the Decedent could have done with it, subject to their obligation to within their fiduciary duties to the estate and its beneficiaries.
It is the Independent Executor’s job to file an Inventory and Appraisement, to publish notice to creditors, to send direct notice to known creditors, to accept, classify and pay valid claims in due course of administration, to reject invalid claims, to collect all the assets of the estate, to pursue all claims of the Estate, to administer the estate and to follow the terms of the Will in making final inheritance distribution. The winding road of an estate administration can be as treacherous for a fiduciary as a mine-field. Be sure you hire the proper guide – an experienced estate attorney – to get you through it without catastrophe. Contact us at Spencer & Johnson, PLLC P.C. to get the guidance you need!
By: Kevin Spencer – 01/10/2017Back to Blog