When a person dies, it is often, but not always, necessary for their estate to go through probate. Probate is the process in which the court recognizes the person’s death and authorizes the administration of the decedent’s estate. Determining how to handle someone’s assets and debts after they have died is determined by probate law. Travis County has a dedicated Probate Court that oversees probate cases.
Compassionate and Comprehensive Probate Guidance in Austin, Texas
In Texas, the probate process involves several steps including:
- Determining whether probate is needed and choosing the best probate procedure
- Determining the validity of the Will
- If the individual died without a Will, determining the identity of the heirs
- Appointing an individual to administer the estate
- Gathering property
- Paying debts
- Resolution of any disputes over assets in the estate
- Distributing assets to beneficiaries or heirs as determined or approved by the court
Did the Decedent Have a Will?
When a client calls us regarding the death of a loved one, we first gather some preliminary facts. Did the decedent have a Will? Under Texas law, a Will must be in writing, and must be signed. If the Will is not holographic, it must also be witnessed. A holographic Will is one that is written in the testator’s handwriting (instead of typed).
Decedent? Testator? Executor?
Sometimes it seems like estate planning and probate have their own language. Some general definitions can be helpful to navigating the probate process.
- Decedent: Someone who has died
- Death Certificate: An official document, issued in Texas by the Bureau of Vital Statistics, verifying that a person has died, and including the date and time of death, cause of death, and place of death.
- Testator: A person who has made a Will.
- Executor: Someone named by the Testator to carry out the provisions in the Testator’s Will.
- Letters Testamentary: once someone has qualified as an Executor, the clerk of the probate court will issue this certificate that is evidence that the person has been approved by the court as the Executor and has the authority to administer the estate.
Do I Need an Attorney to Probate my Loved One's Estate?
People who represent themselves in court or lawsuits are often referred to as “pro se.” Can you represent yourself in a probate case?
In certain kinds of cases, transferring ownership of property by probating a Will as a muniment of title or the filing of a small estate affidavit, a person may be able to represent themselves if certain requirements are met. Those types of cases can be somewhat complicated and working with an attorney, even to advise you in the initial stages, is strongly advised.
A non-lawyer can serve as an executor or administrator, but executors and administrators must be represented by an attorney because those positions involve the interests of beneficiaries and creditors of the estate.