Dealing with the loss of a loved one is never easy. It is all the more challenging if you find yourself in charge of starting the probate process. Broadly defined, probate is a process whereby the financial and legal affairs of a person who passed away will be resolved. At the end of probate, property and assets are transferred to the rightful heirs.
Probate can feel overwhelming—especially if you are unfamiliar with the process. At Weisinger Law Firm, PLLC, we help people and families navigate the process. We want to make sure that everyone has the knowledge they need to protect themselves and their family. Here, our San Antonio probate lawyers provide an overview of the key things you need to know about starting the probate process in Texas.
Your Guide to Probate in Texas: File an Application to Open Probate
Many people expect the probate process to start on its own. The reality is that this is simply a common misconception. In Texas, probate does not start until someone takes action. In fact, you have to apply to open up probate in Texas. To start probate, a document called the Application to Probate Will and for Issuance of Letters Testamentary must be filed with the county clerk. Under Texas Estates Code § 256.052, the probate application should include the following information.
- The name of the person who passed away;
- The state of legal residence at the time of death;
- Whether or not they had a will;
- A preliminary list of their property and assets; and
- A list of the family relationships—spouse, children, parents, etc.
When probate starts in Texas, an important question must be answered: Did the person have a valid will? If there is a will, a probate court must confirm the legitimacy and validity of the document. If there is no will, then the estate will be handled in accordance with the Texas intestacy laws. In other words, Texas state law determines who gets what.
Who is Qualified to Open Probate in Texas?
Technically speaking, not just anyone can apply to open probate in Texas. That being said, the process can be initiated by many different parties. Under state law, probate can be opened by the executor of the estate or any other interested party. Ideally, everyone will be on the same page and there will be no conflict over who receives the Letters Testamentary/Letters of Administration to oversee the process. In some cases, more than one person will file to open a probate. Texas courts are instructed to give precedence in the following order:
- The executor named in the will;
- The surviving spouse;
- The primary beneficiary;
- Any other beneficiary;
- Next-of-kin of the deceased;
- A creditor of the estate; and
- Any other person with good moral standing who applies for probate.
When multiple people apply for probate, Texas courts refer to the list to determine who should get the letters of administration. For example, if a surviving spouse and a creditor both apply to open probate in Bexar County, the Letters Testamentary or Letters of Administration will be granted to the surviving spouse—assuming that they are not legally disqualified to serve as personal representative.
Texas Probate Law Tip: Small Estates May Qualify for a Simplified Probate
It is important to make a preliminary assessment of the total value of the estate. Not every estate has to go through the full probate process in Texas. If your loved one’s estate is valued at less than $75,000 (as of 2021), you may be eligible to use a Small Estate Affidavit (SEA) in probate. Texas Estates Code § 205.001 lists the full requirements for small estate administration.
A small estate does not always mean it is a simple estate. There could be some complicated outstanding issues that must be addressed and resolved. If you have any questions or concerns about small estate administration in Texas, reach out to an experienced San Antonio will & probate lawyer for help.
Contact Our San Antonio Probate Law Attorneys for Immediate Help
At Weisinger Law Firm, PLLC, our Texas probate lawyers are committed to providing compassionate, reliable guidance and support to clients. We are focused on helping people and families navigate difficult times. If you have any questions about where to start with probate after the loss of a loved one, please do not hesitate to contact us for a free, strictly confidential initial consultation. We provide probate law services in San Antonio and throughout the wider region, including Bexar County, Comal County, Guadalupe County, Wilson County, and Atascosa County.