Anatomy Of A Texas Probate Written by James C. Mulder, WealthKeepers 713-461-9699 / JCMulder@WealthKeepers.net / www.WealthKeepers.net This article will focus on the typical Texas will probate process. Texas has one of the best probate systems in the nation. When properly invoked, it is very simple and not too expensive. However, all Texas probates involve a legal proceeding in a judicial format, with a Judge initially at the helm. At the end of the article I will add some of the things that can make Texas probate a nightmare. Probate The probate of a will means proving that the will offered for probate is the last will and testament of the decedent. In Texas this is accomplished by filing the original will for probate with an application to probate the will with the county clerk of the county in which the decedent lived. The county clerk will post the filing on the courthouse door or other official notice site and it must be on file after posting for 10 days before a court hearing can be made to admit the will to probate. A will must be admitted to probate within four years of the decedent’s death. It must be proven as the decedent’s last will in the presence of a Judge with legal authority to handle probates. That is usually either the county judge in rural counties, a county court at law judge in more populated counties and a probate judge in the most populous counties. As a general rule, the original document must be presented for probate. Probate of a copy or duplicate of a will is not permitted unless the absence of the original is satisfactorily explained to the court. The proof required for probate of a will is very minimal. You must prove: • The decedent died and was a resident of the county in which the will is being offered for probate • The will being offered for probate is the decedent’s last will • The marital history of the decedent • If any children were born to or adopted by the decedent after the date of the will • That the person named in the will as executor is not disqualified from serving as executor • That the will was signed (executed) with the proper formalities to make it valid How do you prove these things? Very simply, by testifying under other oath. The most important factor is that the will was executed properly. If not, it is worthless and can not be admitted to probate. In order for a will to be properly executed, it must: • Be wholly in the handwriting of the decedent (holographic will); or • If not wholly in the handwriting of the decedent, be properly witnessed by two people over the age of 14 What is a Valid Will A will can either be wholly in the handwriting of the will maker (Testator/Testatrix) or be witnessed. In order for a non holographic will to be properly executed the must state in the presence of two witnesses that the document he or she is signing is his or her last will and testament and that he/she wants these two witnesses to sign the will as witnesses. The witnesses must sign the will in the presence of the testator/testatrix and in the presence of each other. The easiest way to get a will thrown out of probate court is to prove that the witnesses did not sign the will in the presence of the testator/testatrix and in the presence of each other. The witnesses must testify that the decedent was of sound mind and executed the will as his or her free act and deed (i.e. not under any undue influence). What’s Next? Once the will has been admitted to probate and the executor appointed, the executor can receive letters testamentary. This allows the executor to act on behalf of the decedent in all respects. Texas allows for independent administration if the will provides for it or if the court orders it otherwise. Independent administration means that the probate court will not be involved in the administration of the estate except to approve an inventory, appraisement and list of claims of the estate and approve that proper notice went out to all beneficiaries. An independent executor can then administer the estate and distribute it without any court supervision whatsoever. You still need legal advice, but without the expense of going to court every time you want to do something. Without independent administration, the probate court is involved in every aspect of administration, approving: • Debts to be paid • Administration expenses • Legal fees • Whether to sell assets and the prices to sell them • Distributions to beneficiaries • Annual and final accountings This is very expensive and time consuming. Most Texas wills provide for independent administration. If a will doesn’t, a court can still permit independent administration, but it takes a few more hoops to jump through. Problems The “problem” with probate is that it invokes a legal proceeding at the outset. It involves a Judge who may or may not be feeling good the day you go to court. Once a legal proceeding is initiated, it is much easier for someone who doesn’t like what the will says to object to the will or to the executor. I have had a Judge refuse to appoint my client as independent executor because the ex wife of the decedent filed an objection to my client being the independent executor and the Judge decided to appoint an attorney to administer the estate. Many years and tens of thousands of dollars needlessly spent later, the estate was closed and my client and the other beneficiaries got what was left. Another problem is the public record of the assets of the decedent. An inventory must be filed which lists the values and account numbers of the assets that are subject to probate. Many people don’t like that and so arrange their assets to be survivorship or pay on death. This is very shortsighted as to the end result, but will avoid probate and the publicity of the nature and value of the assets. About Our Show Advisor: James C. Mulder is an attorney with over thirty years of experience in Wealth Transfer, Tax and Asset Protection Planning. He is Board Certified in Estate Planning and Probate Law and in Tax Law by the Texas Board of Legal Specialization. He is one of only a handful of attorneys in the Houston area that are Board certified in both Estate Planning and Probate Law and Tax Law. Mr. Mulder concentrates his practice in Wealth transfer, tax, and asset protection planning. The implementation of such planning includes the preparation of very comprehensive wills, trusts, business organizations and family partnerships. Mr. Mulder has prepared over 1,000 asset protection plans. This Article has been a brief overview of Texas probate of a will. If you have any questions about probate or what is involved with making a will or the alternative to a will, a revocable living trust, please contact us. They offer a 1-hour initial conference at no charge to discuss your asset protection issues. At the end of that conference they can usually quote you a fixed fee to prepare your asset protection plan and can offer you common fees of attorneys experienced in the preparation of the legal structures needed to implement your plan. For more information, contact James C. Mulder at 713-461-9699 or email JCMulder@WealthKeepers.net today.