Losing a loved one is never easy. On top of the sadness and grief, families also need to finalize their loved one’s affairs.
The process of transferring the assets of a person’s estate after they pass away is called probate or estate administration. For some, the idea of having to pay an attorney to handle this process is daunting.
A question we see pop up time and time again is, Can you probate a will in Texas without an attorney? The simple answer is yes, but with some reservations.
The Law Offices of Kyle Robbins has created this guide to give you some basic information on how to probate a will without a lawyer. Please note, however, that estate administration can become complicated very quickly.
Generally, it’s not advisable to probate a will in Texas without a lawyer. This guide is only for informational purposes and does not constitute legal advice.
Before you begin the probate process, you need to take care of some preliminary matters. Perhaps the most important step is gathering documents related to the estate. You will want to obtain a copy of the death certificate, the will, any codicils (amendments), and trusts. Try to locate the original will, if possible. You will also need to notify executors and trustees named in the will. Once you have located the important documents related to the estate and notified these parties, you can proceed with the application.
File the Application
The application you use will depend largely on the size and complexity of the estate. Assuming there is a will, you will need to choose between a muniment of title and a more traditional probate.
Muniment of Title
If your loved one did have a will, but also has a fairly simple estate, then a muniment of title is a possible option. A muniment of title is a simplified way of probating an estate with a will. To qualify, the estate must meet certain criteria:
- There is a valid will,
- The estate does not have any unpaid debts (other than real estate liens),
- More than four years have not passed since the death,
- There is no need for administration of the estate (due to complexity, disputes, etc.), and
- There are no Medicaid claims against the estate.
You may file an application to probate the will as a muniment of title in the county where the decedent lived. The court will issue an order admitting the will as a muniment of title if the estate qualifies. You can then use the will and the order to transfer the assets of the estate.
If the estate does not appear to qualify for a muniment of title, then you may need to follow a more traditional probate process. As with the muniment of title, there are certain criteria the estate must meet:
- There is a valid will, and
- More than four years have not passed since the death.
To begin the process, you will need to file an application for probate in the county where the decedent lived.
There is a two-week waiting period after the application is filed. During this period, a notice is posted to inform the public of the probate. This notice gives those who wish to contest the will an opportunity to come forward.
A hearing is held after the two-week notice period to determine the validity of the will. The judge will also determine whether the probate has been filed in the correct court and if you are qualified to handle the administration of the estate.
If you are appointed the executor or administrator, you will then obtain letters testamentary from the court clerk. The court issues these letters to allow the executor or administrator to transfer the assets of the estate. Banks and other financial institutions will likely ask for the letters testamentary before allowing any transfers.
You will have to do an accounting of the estate before any assets are transferred to the beneficiaries. This accounting includes:
- An inventory of assets of the estate,
- An appraisement of the value of the assets, and
- A list of claims against the estate.
For smaller and less complicated estates, you may file an affidavit in lieu of the inventory, appraisement, and list of claims.
Notifying beneficiaries and creditors
Next, you will notify the beneficiaries and creditors of the probate. During this time, creditors may start to file claims against the estate. You can notify creditors through publication in a newspaper.
Distribution of assets
You will also need to resolve the outstanding debts and obligations of the estate. You can distribute the assets to the beneficiaries once these items have been resolved.
Closing the estate
Filing the final accounting will end your representation of the estate. You should only do this once the debts are paid and assets are distributed. You can ask the court to close the estate once all outstanding matters have been resolved.
When Do You Need a Lawyer?
If you are still not sure how to probate a will in Texas yourself or you believe the estate may be too complex to handle on your own, you may want to talk to an attorney. An attorney is also necessary when there is a will contest or dispute about heirship. The Law Offices of Kyle Robbins has extensive experience in probate and estate administration. If you decide you need a lawyer to help you in the probate process or have questions about the process, we are here to help. Speak to an experienced probate attorney today at 512-643-9341.