What does probate mean, why is it important and how does it affect you? Probate is a fancy word that has a simple meaning. Whether someone dies with a will or without a will, “probate” means the legal process by which title to the property is transferred from one person to another after someone dies. Why is probate important? It lets persons, businesses, charities and the public know who the new owner of the property is. Probate also gives those persons confidence that they are dealing with the person or corporation they should be dealing with if they want to purchase the deceased person’s property.

In general in Texas, you cannot represent yourself in a probate proceeding. You have to hire a lawyer and you should hire a probate attorney who is knowledgeable of the probate process.

Probate with a Will

For example, your mom passed away a long time ago and your dad passes away. You and your two brothers want to sell your Dad’s house and you hire a realtor. Can the realtor enter into a contract with you and your brother to list the house for sale? Who signs the sales documents? You? Your brother? Both of you? The realtor? How does the purchaser know whether or not you and your brother have the right to sell your Dad’s house? The answer is probate. If your father had a will, it probably named you or your brother as the executor, or possibly both of you as co-executors. If you are named in the will as the executor are you able to make decisions about whether to sell the property in your Dad’s estate without probating the will? Answer: No, not until the will is admitted to probate.

First, when someone dies, a probate attorney will tell you to locate the will. In Texas, you have to probate the original will, a copy of the will will only be admitted to probate under certain circumstances.

Your probate attorney will explain that “probate” means that the court “blesses” the will by finding that it is the true and only last will and testament of the deceased person and not a prior will. The court does this by hearing the testimony of witnesses. Once the court is satisfied that the will is really the deceased person’s last will, the court “admits” the will to probate. That means the terms of the will that transfer the title from the deceased person’s property to another person, business, trust or charitable organization must be carried out by the executor.

The “executor” is the person the court appoints to carry out the terms of the will. The executor takes an oath to carry about the terms of the will. The executor must hire an attorney, preferably, a probate attorney, to advise the executor on how to properly carry out the executor’s oath. The executor has a “fiduciary relationship” with the “estate” and must act in the estate, the beneficiaries and the creditors of the estate’s best interests. The “estate” is the property owned by the deceased person at the time of death. A fiduciary must refrain from self-dealing with the estate property—meaning taking opportunities from the estate property for the benefit of the fiduciary instead of the estate, its beneficiaries, or its creditors. The executor also owes the estate, its beneficiaries, and its creditors the duties of utmost good faith, fair dealing, candor and full disclosure. The executor can be a person or corporation, Texas allows corporate fiduciaries.

In our example above, the executor is the person who can enter into the listing agreement with the realtor on the estate’s behalf, the executor can sign the sales contract to sell the house, the executor can take the proceeds from the sale of the house and then deposit them into a special estate bank account in the executor’s name as the executor for the estate. Then, the executor with the probate attorney’s advice, should pay all of the lawfully due and owing debts of the estate and disburse the proceeds of the sale to the beneficiaries named in the will.

In sum, the executor’s duties are to gather all of the assets of the estate as of the date of the deceased person’s death, pay all of the lawfully due and owing debts in the manner required by the Texas Estates Code with the probate attorney’s help, and then to distribute the remainder as required by the terms of the will. Then the executor must provide an accounting to the court, showing what came in, what was paid out, what was left and whether it has been distributed to the beneficiaries of the estate. A probate attorney will help the executor through each step so that the executor complies with the oath.

Probate without a Will

What if your Dad did not have a will? Who makes the decisions about what happens to his property? If there is no will, the court will appoint an “administrator” who will do the same thing as the executor. But before the court will appoint an administrator, it will first find out and determine who are the rightful heirs of the deceased person. The court will appoint an attorney with additional training called an “attorney ad litem” to locate and represent the heirs. This attorney will perform an investigation to determine who the heirs are and then will provide a report to the court. After the report is provided to the court, the court will hear testimony from the heirs, the attorney, and any other interested parties. The court will then declare who the rightful heirs are and appoint an administrator to carry out the same duties that the executor had. However, the court may also require the administrator to post a bond for the benefit of the heirs and/or creditors. The administrator will take an oath, then gather the assets of the estate, pay the lawfully due and owing debts, distribute the remaining property to the heirs as required by the Texas Estates Code, and then file an accounting with the court. A probate attorney will help the administrator through each step so that the administrator complies with the oath. BFS Law Group has attorneys who are experienced in probate and Shelly Skeen has earned her designation as an attorney ad litem.

Estate Planning