A Probate Hearing Unlike Any Other
Can you imagine the court hearing for the probate of Jesus’ will?
“The Court calls In Re Estate of Jesus of Nazareth. Counsel, could you please explain the strange phone call that you made to my court coordinator last week?”
“Your Honor, we have a slight problem. In our Application for Probate, we said the date of death for Jesus was on a Friday, but since then there’s been a development.”
“What type of development, counsel?”
“Well, apparently His body is missing from the tomb, and multiple people saw Him alive 3 days later.”
“Counsel, we can only probate a person’s will if he is deceased. I’ll give you until next Monday to brief the issue about whether Jesus is deceased according to the laws of Texas. I think that, under the circumstances, you should also give notice to the beneficiaries of His estate. How many did you say there were?”
“Several billion, Your Honor.”
“Well, you’ll be busy. Your case is continued for 10 days.”
What Does “Probate” Mean in Texas?
In Texas, “probate” refers to the legal process of administration and settlement of a decedent’s estate. It necessarily involves the courts. Confusingly, attorneys and the law use the term “probate” as both a verb and a noun.
When we refer to the “probate of a will”, we mean asking a probate court (or a court with the authority of a probate court) to enter an order that recognizes the will is valid and binding. If there are assets and debts that need to be handled further, then the court will open a “probate administration” and appoint a personal representative — either an executor or an administrator — to handle the estate.
An executor is generally named in a will, while an administrator is appointed by the court. The court clerk issues “letters testamentary” to a qualified executor or “letters of administration” to a qualified administrator. These documents show that the personal representative has authority to act for the estate.
If the decedent unwisely died without a valid will (also known as dying intestate), then we ask the court to determine the decedent’s heirs, and then, perhaps, open a probate administration if one is needed.
What Is the Probate Estate?
The assets subject to administration, along with the claims and debts that must be addressed, make up the “probate estate.” The goal of a probate administration is to transact all business related to the probate estate, and ultimately settle, partition and distribute the estate.
Not every asset is part of the probate estate. Certain bank accounts, retirement accounts, life insurance policies and real property may pass outside the probate process through a valid beneficiary designation, transfer-on-death designation or right of survivorship. Whether an asset is a probate asset or a non-probate asset depends on how it is titled and whether a valid designation applies.
If there is a will, then the estate is distributed according to the terms of the will. If there is not a will, then the estate is distributed to the decedent’s heirs, as determined by the court.
Independent vs. Dependent Administration
The time between appointment and distribution of the estate is busy for the administrator/executor. Their actions are supervised by the probate court unless the will stipulates that the executor can act without court supervision, or the heirs and the court agree that no court supervision should take place. A court-supervised administration is called a “dependent administration.” An administration without court supervision is called an “independent administration.”
An independent administration is almost always faster and cheaper than a dependent administration.
Where Texas Probate Law Comes From
Most of the definitions and law applicable to probate are found in the Texas Estates Code, but the Texas Government Code, Texas Civil Practice & Remedies Code and Texas Rules of Civil Procedure make a few appearances, too. For reading enjoyment, they are on par with Dante’s Inferno.
“Counsel, why are you back in the Courtroom?”
“A brief request, Judge. I have been trying to talk to my client, but the fire department keeps showing up to put out the burning bush”.
“I’ll see what I can do. You’re excused. The Court calls the next matter on the docket: In Re Estate of Lazurus.”
“Your Honor, we have a slight problem….”
Get Help Navigating the Texas Probate Process with Hammerle Morris
Probate terminology can be confusing, but you do not have to navigate the legal process alone. If you need help probating a will, or understanding your responsibilities as an executor or administrator, schedule a consultation with one of the experienced probate attorneys at Hammerle Morris.
Virginia Hammerle is a licensed Texas attorney whose practice includes estate planning, probate, guardianship and litigation.
This article is for informational purposes only and does not constitute legal advice.
