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So, what is Probate?

One of the questions I am frequently asked is, what is probate? Or, do I have to probate if my loved one had a will?  There is a common misconception that having a will helps a person to avoid probate.  Unfortunately, that’s just not true.  A will does, however, make the probate process much more pleasant.  So, what is this procedure called “Probate”?  Black’s Law Dictionary defines probate as “The judicial procedure by which a testamentary document is established to be a valid will; toe proving of a will to the satisfaction of the court.”  As you would expect from a legal dictionary, Black’s defines one legal term with a lot of other legal terms.  Let’s break it down a little further.  Probate is simply the process where a Judge decides if a will is valid and then appoints a person (usually called an executor) to make sure the will is followed and the people who are supposed to get property actually get it.

The will typically dictates who the executor will be.  Assuming that person is not disqualified from serving, the Judge will appoint them to serve as the executor.  Reasons that a person could be disqualified from serving as executor include: being incapacitated, being a convicted felon or just being a person the court finds unsuitable.  An executor has little to no power until they have been officially appointed, so it is often important to move quickly to be appointed if there is property that needs to be dealt with or protected quickly.

Probating a will is not one of those legal tasks that you want to try to do on your own.  In fact, some courts are now requiring that an executor is represented by an attorney.  This is due to the fact that you are taking on a fiduciary responsibility.  There we go again using legal jargon. In short, being a fiduciary means you can get in trouble if you screw it up.  So, get help.  It costs a lot less to do it right the first time than it does to hire somebody to get you out of a mess later.

In an uncontested probate situation, meaning nobody is fighting about whether the will is valid and beneficiaries aren’t fighting over property, the probate process can be handled very smoothly from that point.  Typically, your attorney will file the will and an application to probate with the court.  After notice has been posted, your attorney will schedule a hearing within a few weeks.  At that hearing, the court will appoint the executor.  The executor will take an oath and begin working through the estate.  The Executor will be responsible for preparing an inventory which may be filed with the court or just given to all the beneficiaries in certain circumstances.  The executor will then begin settling the estate by paying debts and distributing the estate to beneficiaries.  In simple estates in Texas, the entire process can be completed in less than a few months.  However, some estates will take longer. The best thing you can do if you have been named as an executor is to get good advice from a competent legal professional as soon as possible.  After that, make sure you keep good records of everything you do on behalf of the estate and be as transparent as possible with all the beneficiaries.

If you are interested in learning more about the process or about how to plan your own estate to make the process easy on your beneficiaries, including finding ways to completely avoid probate, feel free to contact us to discuss further.

2 Responses to “So, what is Probate?”

  1. Rosalie L Cruz

    I have questions regarding preparing a WILL and EXECUTOR. (AT&T 401K, personal jewelry, furniture, my Rental Property). All which I purchased BEFORE I got married. I am still married. I have 1 Daughter & 1 Grandson. They are NOT my Husband’s biological family. Thank You

    • Olivia Weisinger

      Ms. Cruz,
      Thank you for reaching out. We would love to help answer your questions. We could schedule you for an initial consultation with an attorney to get these questions answered. Would you like to get on the schedule?

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