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Assisting Central Texans with Probate Administration

If you are in the process of weighing your options for probating a loved one’s estate, you likely have a lot of questions.

At Fair and Fair, PLLC, our Waco probate attorney prioritizes helping clients explore all legal options available to them to ensure that their loved one’s wishes are honored.  Additionally, we strive to keep the probate process as cost-effective as possible by offering flat-fee pricing for most cases, while ensuring that we answer any questions clients may have to ensure they feel comfortable with the often complex and confusing provisions of the Texas Estates Code.

As every probate matter has a unique set of facts and circumstances and have real people involved trying to navigate a challenging time in their life, we focus on putting people first.

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During consultations and meetings, we tend to ask a lot of questions. This allows us to get to know you, while analyzing your particular situation thoroughly to develop sound legal strategies to ensure your loved one's final wishes are respected.

Feel free to browse through the information below to help you understand the basics of the probate process in Texas.

If you need help now with a probate matter, or would like to schedule a consultation regarding a probate or estate planning issue, please contact our Waco probate attorney for a free initial consultation to discuss your specific case.

For more information on our Estate Planning services, click here

Common Questions To Ask a Waco Probate Attorney

Probate is the legal process in Texas that transfers title of property from the estate of an individual who has died.  The person who died is known as the “decendent,” to his beneficiaries.  Probate is typically used when the decent owned property such as real property, vehicles, investment accounts, and other financial accounts.  In the case of financial accounts, financial institutions typically request Letters Testamentary.
First, a will is a legal document that is written, signed, attested, and notarized to ensure that upon the decedent’s death, the decedent’s property is given to the people that the decent specified in the will.

For a will to have legal effect, it must be “proved-up” in a Texas Probate or County Court. “Proving-up” a will is essentially the process of showing the court that the will was validly executed, that it is the decedent’s last will and testament, that it has been properly signed and attested, and that it has not been revoked.

Additionally, the applicant who brings a will to the Court may request that the Court appoint an executor or administrator for the decedent’s estate. A Waco probate attorney can help you through this process.

Under Section 256.051 of the Texas Estates Code, a probate application may be made by the executor named in the will, or by an heir, devisee, spouse, creditor, or any other person having a property right in, or claim against, the decedent’s estate.  In general, the independent executor listed in the will is typically the person to open probate.  If you are unsure who the executor is in your loved one’s will, you can contact a Waco probate attorney to help determine who should probate the will.

An application for the probate of a will should be brought within 4 years after the death of the decedent.

However, a will may be probated after 4 years, but the person bringing the will must fully explain why he or she should not be held in default for not timely offering the will into probate.  Additionally, all persons who would inherit in the absence of the will must be notified prior to the Court considering the late application. If you have any concerns regarding probating a will after 4 years, a Waco probate attorney will be able to answer your questions.

No, there is no statute under the Texas Estates Code that requires that the attorney who drafted the will also be the attorney who probates the will.

The executor is free to hire the attorney of his or her choice.

What Types of Probate Administration Can a Waco Probate Attorney Assist With?

Probate of a Will as a Muniment of Title is typically used to admit a will to probate when the decedent left a will and the only assets remaining in the estate are the decedent’s home, and/or a very small bank account.

Independent administration is the most common type of probate proceeding when the decedent left a will.  This type of administration is used to admit the decedent’s will to probate to give it legal effect and appoint an executor to administer the estate.

This type of probate is similar to an independent administration of a will, but is used when the decedent left a will, but one of the following situations occurred:

  • The decedent did not name an executor in his or her will,
  • The decedent’s named executor is deceased,
  • The decedent’s named executor is disqualified to serve as an executor,
  • The decedent’s name executor is unwilling or unable to serve as an executor, or
  • The decedent’s named executor is not granted independent status

If any of this situations occur, all of the distributees of the decedent must agree on having an independent administration and then must agree on the specific person to serve as the independent administrator.

When is this type of administration used?

This type of administration is is used when the decedent left a will, but one of the following situations occurred:

  • The decedent did not name an executor in his or her will,
  • The decedent’s named executor is deceased,
  • The decedent’s named executor is disqualified to serve as an executor,
  • The decedent’s name executor is unwilling or unable to serve as an executor, or
  • The decedent’s named executor is not granted independent status

If any of these aforementioned situations occur and the distributees of the decedent’s estate cannot agreement upon having an independent administration and/or the choice of qualified individual to serve as an executor, then a dependent administration is needed.

Requirements:

  1. The decedent left a valid will; and
  2. There is a need for a formal administration

Procedure:

The decedent’s original will and an Application to Probate Will and for Letters of Administration are filed with the Court.  If approved by the Court, the Court will will issue an Order Admitting Will to Probate and Authorizing Letters of Administration.

Administration:

First, the Court appoints an administrator and issues Letters of Administration to the administrator.

Then, the Administrator will be charged with:

  • Collecting the assets of the decedent’s estate,
  • paying the debts of the decedent’s estate, and
  • distributing any remaining assets to the distributees of the decedent’s estate in accordance with the terms of the will

A dependent administration differs from an independent administration due to the limitations on the administrator.  The administrator cannot pay bills, cannot sell assets, and cannot distribute assets without court approval for each step.  In addition, periodic accounting must be prepared to advise the court of the status of the decedent’s estate.

Fees:

For dependent administration, my office charges $200 per hour plus applicable court costs and fees.

Several factors influence the amount of attorney time needed for a dependent administration.  These factors include:

  • the number of creditors to the decedent’s estate
  • the amount and character of the assets in the decedent’s estate
  • the amount of contention and potential disputes among the distributees

Due to the potential expenses resulting from a dependent administration, I highly advise clients to pursue dependent administration as a last resort and encourage families to make good-faith attempts to settle their differences before pursuing this type of probate administration.

Options for Decedents Without Wills

In some cases, decedents do not have wills at the time of death, but still have property that needs to pass legal title to beneficiaries. Also, some decedents who have wills at the time of death do not have sufficient property that would necessitate going through the probate process.

Instead, alternatives to the formal probate process may exist that will help beneficiaries avoid the expense and time required of the probate process and still pass legal title for the decedent’s property.

In general, these alternatives listed below are most effectively used when the decedent has an estate consisting primarily of real property. Additionally, these listed alternatives are typically available to decedents who did not have any outstanding debts at the time of death

Likewise, these alternatives are generally available only when the Decedent did not have any debts outstanding at the time of death, except debts secured by real estate. It is best to consult with a Waco probate attorney to find the best course to take for your specific matter.

An Affidavit of Heirship is typically used when an individual dies without a Will and left only real estate to pass to his or her beneficiaries. Instead of going through the probate process, heirs can properly transfer title to property by filing an Affidavit of Heirship in the deed records of the county in which any parcel of real estate owned by the Decedent lies.

A Small Estate Affidavit is similar to an Affidavit of Heirship.  However, a Small Estate Affidavit is filed with the Probate Court or County Court in which the Decedent resided at the time of his or her death, or in any county in which the Decedent owned real property.

The Small Estate Affidavit must include the same information as required in the Affidavit of Heirship.  But, in addition to those requirements, the Small Estate Affidavit must be signed by all of the Decedent’s heirs, as well as 2 disinterested witnesses.

After completion, the Small Estate Affidavit is filed with the Probate or County Court.  The Court will then issue an Order approving the Affidavit and order that all property owned by the Decedent be transferred pursuant to the instruction in the Affidavit.

If a Decedent dies without leaving a will, a Probate Court can conduct a formal Determination of Heirship.  With this process, the Court will make a formal determination as to the identity of the Decedent’s heirs.  Pursuant to the Court’s formal declaration, the Decedent’s property can be divided and distributed among the heirs.

Contact Fair and Fair, PLLC to schedule a consultation with a Waco probate attorney. Call (254) 230-4603 today.

Fair and Fair, PLLC

688 Alliance Parkway, Suite 500
Hewitt, Texas 76643
(254) 230-4603
Jean@FairandFairLaw.com

Waco Probate Attorney Jean Fair

Jean Fair

Waco Probate Attorney