Probate

Many probate estates are administered on a “routine” basis. “Probate” refers to the judicial proceeding in which an instrument is determined to be the valid last Will and testament of the Decedent or, if there is no Will, the proceeding in which the Decedent’s heirs are legally determined. At the probate proceeding, an executor (if named in a Decedent’s Will) or an administrator (if named by the court) is appointed to carry out the administration of the Decedent’s estate.

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Administering an Estate in Probate

The proof of the executor or administrator’s authority to act on behalf of the estate is evidenced by what are called “Letters Testamentary” or “Letters of Administration”, both issued by an authorized clerk at the direction of the probate Judge. The executor or administrator has the responsibility of collecting the Decedent’s assets, giving notice to creditors, paying valid claims, filing the Decedent’s final income tax returns, if applicable, filing an Inventory, and eventually paying out the remaining Estate assets to the beneficiaries if there was a Will, or if there was no Will, to the court determined heirs at law.

When individuals die without wills, the State of Texas intestacy laws specify who will inherit from the intestate decedent. Important factors in determining who gets what include whether the decedent was married and whether he or she had children. Another important consideration is whether the decedent’s property was “separate property” or “community property” under Texas law. Located in Dallas, our legal team is ready to meet for an individual consultation.

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Definition of Legal Terms about Probate

Intestate – A person dies Intestate when one of the following circumstances exist:

  • No will
  • Will not legally valid
  • Has made a will, but revoked or canceled it
  • There is no one who can take under the will

Administration – The management and disposal under legal authority, of the estate of a deceased person, who dies without leaving a legal will.

Administrator / Administratrix – Person or entity appointed by the Court to administer the estate when no valid will was left. Administrator is usually used, instead of being gender specific.

Letters of Administration – An instrument issued out of the proper court empowering the person or entity named by the court to administer the intestate estate of the deceased.

Testate – The condition of one who dies having made a will.

Foreign Will – Probated will In a state/county other than the one in which the property is located.

Probate – The proof before an office of the court authorized by law that an instrument, offered as the last will and testament of a deceased person, is their last will and testament.

Testator / Testatrix – Person who makes a will. Testator is usually used, instead of being gender specific.

Executor / Executrix – Person or entity appointed by the court to administer a testate estate. Normally, the executor is the person or entity named in the will. Their powers are defined by statute and additional powers may be granted in the will.

Letters Testamentary – An instrument issued out of the proper court empowering the person named in the will as executor to administer the estate of the testator.

Testamentary – Relating to a will.

Muniment of Title – Written evidence of title (Texas).

Certified Copy – One signed and certified as true by the official, who has custody of the document. Normally, the official party would be the county clerk.

Exemplified Copy – One authenticated by the Court in which the foreign Will was probated.

Corroborate – Additional evidence to establish the same point.

Affidavit of Heirship — A written statement sworn to before a notary as to the family and marital history of a deceased person.

Affiant – One who makes oath to a statement.

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