With more than 35 years of experience, the team of probate attorneys at Hammerle Finley Law Firm has been helping individuals and entities with probate proceedings throughout North Texas. Probate is a court process with respect to the administration of the estate of a deceased person. It specifically resolves all claims and distributes the deceased person’s property under a valid will or the state laws of intestacy. Many Probate proceedings are uncontested and simple; however, if there is no will or the will is contested, then a lengthy litigation may ensue.
Advantages of Probate
- Protects the instructions of the deceased person
- If an administration is necessary, confirms either an executor or administrator as the personal representative of the decedent’s estate
- Protects the interest of heirs and creditors of the estate
- Provides third parties with the necessary legal assurances relative to title and dealing with the decedent’s property
Probating a will, opening an estate, contesting a will or appointment of an administrator, preparing a family settlement agreement – these are complex and technical proceedings with wide-ranging implications. Aside from the Texas laws, there are often Local Rules (Denton, Collin, Tarrant, and Dallas Counties have statutory Probate Courts with local rules) that must be followed.
At Hammerle Finley Law Firm, Robert Morris, Virginia Hammerle, Kendra Rey, and Mark Mayer have experience with the local probate courts and other Texas courts in handling probate matters.
Types of Probate in Texas
Uncontested Probate of a Will
Probating a will is a simple and cost-effective procedure in Texas. It involves filing an application, publishing the notice, a hearing before the court, and filing an inventory or Affidavit in Lieu of Inventory. The actual proceeding is called an Independent Administration of Decedent’s Estate.
Contested Probate of a Will
These are often difficult and emotional for all involved. When the validity of a will is contested, the procedure becomes adversarial types of cases.
Application for Administration of an Estate
When there is not a will, but there are debts that need to be paid and assets that need to be distributed, an interested person can apply for administration of an Estate. A separate proceeding, called an heirship proceeding, is usually necessary so that the court can formally declare the heirs of the estate.
Sometimes a situation may arise that requires a person to obtain an immediate order so the assets of an estate can be preserved, a safety deposit box opened, or funeral expenses paid.
Muniment of Title
When there is a valid will and the estate is small enough, this can be a quick way to transfer title to estate assets.
Affidavit of Heirship
When there is not a will, the estate is small, and all of the heirs are in agreement, this is a potential solution to show the passage of title of an asset.
Family Settlement Agreement
When the heirs or beneficiaries are in agreement and a will does not have to be probated, the parties can enter into a Family Settlement Agreement.
Independent Administration of Decedent's Estate (for a Will)
The process of probating a will involves many different steps which a probate attorney can guide you through. Here is an overview of what goes into the process of probating a will:
- The named executor or an interested person applies to probate a will.
- The Clerk issues citations on the application (although this can be waived), and the citations are served.
- The applicant gives notice to the Attorney General if there is a charitable trust involved and the application is contested.
- If the personal representative (normally the executor or executrix named in the will) is from out of state, then he or she designates a resident agent for service of process (At this point, an interested person can contest the will or appointment of the personal representative).
- The Court may appoint an attorney ad litem, if necessary, to represent nonresidents, unknown or missing heirs, or persons having a legal disability.
- The Court holds a hearing on the application for probate of the will, and for issuance of letters testamentary.
- The Court orders the Will admitted to probate, names a personal representative, and grants letters of administration. (Anytime during the next 2 years a person can contest the Will; the time period may be “tolled” for forgery, fraud or incapacity).
- The personal representative takes an oath.
- The Clerk issues letters testamentary.
- The personal representative takes possession and control of the estate property.
- The personal representative is now responsible for administration of the estate – giving notice to the beneficiaries, the creditors and the IRS, preparing and filing an inventory, filing an estate tax return and the decedent’s final income tax return, paying the creditors and distributing the property.
Hammerle Finley Law Firm has represented clients for more than 35 years inside and outside the courtroom. We provide effective, strategic, and cost-effective legal counsel so that our clients can focus on what matters most to them.
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