What is Probate?
In its most basic terms, Probate is the process of passing property from the estate of a deceased person to the deceased person’s heirs. If the deceased executed a Last Will and Testament before his or her death, the probate process will involve offering the Will to the probate court, proving its legal validity, and appointing an executor (or executrix) approved by the court, whose function it is to administer the estate of the deceased according to the law and the Will. This process is also possible when the deceased passes without a Will, although it goes by a slightly different name in Texas – a Determination of Heirship (or, informally, Intestacy). During the course of an heirship, however, there is no Will to offer or validate. Instead, the court will appoint an attorney ad litem to investigate the existence and identities of any unknown heirs of the deceased. The court will also appoint an administrator of the deceased’s estate (whose function is analogous to the function of the executor).
In Bexar County, these probate matters (as well as other matters such as Guardianship) are handled by one of the two statutory probate courts. Not every county has a statutory probate courts, and sometimes probate matters may be heard by the county court or the county court-at-law.
Once the Will has been probated (or a determination of heirship made) and an executor (or administrator) appointed, the executor is required to gather the assets of the estate, pay any claims or creditors (including funeral expenses and legal expenses), then distribute the assets to the beneficiaries named in the Will (or, in the case of an intestacy, to the heirs in the shares provided for under Texas law).
There are, in addition, various other “shortcut” probate techniques such a small estate affidavit, probating the will as a muniment of title, or an affidavit of heirship.
Why Is Probate Necessary?
The process of transferring legal title to property from one person to another requires, variously depending upon the type of asset being transferred, a signed contract, a recorded deed, or other similar thing. Maybe the contract is signed as between two people (such as a bank account or transfer instruction). Maybe the executed deed is recorded with the county clerk. Maybe the bill of sale is signed and filed with the DMV. And so forth – you get the idea. But, all of these methods of transferring property have one salient feature in common – the transferor has to sign something. Obviously, for a dead person this is a significant problem. Enter the probate court. You have your hearings, get a court order, and POOF! Transferring title from a deceased person is now possible.Is Probate Ever NOT Necessary? (or, is Probate Sometimes a Bad Idea?)
Actually, yes! Sometimes probating an estate would be both unnecessary and a bad idea. Specifically, in the event that a person passes with more debts owed by the estate than assets remaining in the estate, the heirs would not receive anything even in the event the probate were fully and correctly “played out” (the assets would all go to the estate’s creditors, with nothing left over to distribute to the heirs). Accordingly, in this kind of situation, it makes no sense for the heirs to spend money on an attorney and time messing with courts and documents pushing through the probate process, only to receive nothing in the end.Do I “Automatically” Inherit Someone’s Debt? (or, do I have to pay the estate’s debts?)
In virtually all circumstances, the answer is no. You cannot inherit someone’s debts without your consent, and you cannot be required to pay the estate’s debts on its behalf. Of course, there may be some circumstances where it is in your interest to pay or inherit the estate’s debts (if the estate holds property that has great sentimental value, for example). But the point is that, under the functioning of the Texas Estates Code (the name of the law that governs heirship and probate in Texas), that is always voluntary. You can read more about “walking away” from estates or inheritances in this blog article on disclaimers.Do I Need an Attorney for a Probate?
The simple answer is that it’s sometimes a requirement, and even when it’s not a requirement, it’s still a good idea. An experienced probate attorney not only has familiarity with the different options available in the probate courts, but also will have experience with various related issues, such as how to handle the non-probate assets. In other words, a quality probate attorney will help you “map” your journey. Often, it is a legal requirement to have an attorney for a probate proceeding. The Bexar County Probate Courts, for example, state that: “Only a licensed attorney may represent a third person or entity in a judicial proceeding in the State of Texas. In most probate or guardianship cases, an individual applicant is not truly representing only themselves, rather they are attempting to represent another person or persons such as beneficiaries, heirs, the estate itself, or, in cases of guardianship, the ward. These instances include when an individual is applying for letters testamentary, letters of administration, determinations of heirship, and guardianship of the person or estate, all of which may require the services of an attorney. Unless the applicant is a licensed attorney, filing an application to probate a will without an attorney constitutes the unauthorized practice of law and will not be allowed by the court.” This has also been upheld in various caselaw, including In re Estate of Maupin, a 2019 case from Austin where a pro se litigant attempted to file for probate. The Austin probate judge ruled that this was not possible because a pro se litigant may not file pleadings on behalf of an entity such as an estate or corporation, and the appeals court upheld the probate judge’s decision. In other cases, hiring an attorney may not be a strict legal requirement, but is nonetheless a good idea, because the world of probate can be convoluted and tends to be not at all intuitive for most non-lawyers (and some lawyers, too). Having an experienced probate attorney advising you as to the different options can turn an extended process with many false-starts into a much simpler and smoother experience.How do I Choose the Right Probate Lawyer?
There is not a one-size-fits-all answer to this question. While there are a few “boxes” that a quality probate lawyer should “check,” the choice ultimately comes down to choosing someone you’re comfortable with. Above all, your probate lawyer should be someone who you trust and respect, and someone who you feel “gets” your situation. This is someone who will be providing you advice and counsel through a potentially very difficult time. Some questions that you might ask include:Practice Areas: What areas does the attorney practice in? Are you dealing with someone who specializes in one or two areas with a significant focus on those areas? Or someone who is a “jack of all trades, master of none”?
Length of Practice: How long has the attorney been practicing? Are you dealing with someone just out of law school? Someone who is about to retire and will hand your case off to a junior associate or paralegal? Someone in the middle of his or her legal career?
Academic Pedigree: What law school did the attorney go to? How well-regarded is it?
Awards: Is the attorney AV-Rated? Has he or she received other notable peer awards?
Reviews: Does the attorney receive high marks from his or her past clients?
While the answers to these questions may be illuminating and help you choose the right attorney, it’s still of utmost important to choose someone you trust, respect, and “get.”What Will a Probate Attorney Do For Me?
A Texas probate attorney will, first of all, help you inventory your loved one’s overall assets and then help you sketch out a game-plan for how to approach your loved one’s estate, including both the probate and non-probate assets. The probate attorney will then help you draft the required petition, depending on whether there was a will or not and what kind of proceeding is being pursued. In cases where a court hearing is required, your probate attorney will also represent you in that court hearing. After the court hearing, the probate attorney will not only draft any supplemental documents required by the court, but will also advise you from time to time on any potential requirements that may be imposed on you (for example, filing an inventory with the court).