You might have heard — “Was your father’s estate probated?”  This is at the heart of the definition of “Probate.”  Probate is the process of going through the judicial system to settle a persons assets after the person passes away.

Texas has a complex judicial system as it relates to which court handles the assets of a deceased person.  In most of the larger metropolitan areas of the State of Texas, there are special courts called Statutory Probate Courts.  There are three Probate Courts in Dallas County.  In Tarrant County, there are two probate courts.  In Collin County, there is one probate court.

A person’s will is not effective unless it is probated.  In other words, there is no legal effect of the will unless a court with proper authority has “probated” the will.  By probating the will, the court will review the will submitted as being the deceased person’s last will and testament and rule whether it conforms with the requirements under the law.  If the court is satisfied the will meets the requirements under the law, the court will admit the will for probate and appoint an executor or executrix to distribute the estate.

In Texas, it is common for the will to require an independent administration.  An independent administration is a process where the independent executor/executrix distributes the estate with very little court supervision.  If the will does not specify independent administration and there is not an agreement among the interested parties under the will to conduct an independent administration, the court will require a dependent administration.  In an Dependent administration, the court is directly involved in the distribution of the estate.  Both types of administration are discussed in greater detail under this section.

If your loved one did not leave a will, it is still possible to probate their estate.  It is technically called administering the estate.  After applying to the court for an administration of the estate, the court will appoint an administrator to handle the estate.  In an dependent administration, the court is directly involved in the administration of the estate.  It is similar to the Dependent administration under a will.  A person can also apply for an independent administrator to be appointed and is similar to an independent administration under a will.

“Probating” the estate is not your only option to dealing with the estate of someone who has passed away.

As indicated earlier, if a will has not been probated it is not legally binding.  The beneficiaries under the will can enter into a family settlement agreement expressing their wishes on how to distribute the estate.

If there is not a will, a person can ask the court to issue a declaration of heirship.  This process requires asking the court to issue a ruling on who the heirs are of the deceased person.

If there is a will and it has been over four years, a person can ask the court to admit the will as a minument of title.  This allows the will to be admitted for the purposes of transferring an interest in real property.

Our firm will assist you determining what is the best way to proceed.  Numerous facts will determine what is in your best interest.