How Do I Probate a Will?

So, you were named as the executor of someone’s will. You might or might not have already tried to just take the will to a bank only for them to tell you that you have to go through probate and get a judge’s signature. The probate process is little to nothing like any other type of legal process you’ve seen on TV or in movies or books. The best case scenario for a probate process is that it’s very boring and tedious.

A very broad, general timeline for what to expect in the probate process in most states, in most instances generally includes: 

1. Hire an attorney: In Texas, you’re required to hire an attorney for the probate process; you cannot represent yourself pro se. In every state, a basic probate isn’t the most complicated type of legal process out there, but it’s still a lot of very important work. An experienced probate attorney knows the idiosyncrasies of each state’s laws and each court’s specific requirements.

2. Gather documents: Collect all necessary documentation to get started.

   • Decedent’s will: Almost always, the first and most important thing that your attorney needs to get started on handling a probate case is the original will (“original” as in the original papers that the decedent actually signed with a pen; copies don’t count).

   • Death certificate: Believe it or not, most courts don’t require that you produce the death certificate. However, it has a lot of the information that your attorney will need. Further, it might be helpful to quickly access non-probate assets like accounts and investments that have payable on death provisions.

   • Assets & liabilities: A full, accurate list of assets & liabilities can’t be completed until after an executor is named. However, having a general idea of what the decedent had and/or owed will help your attorney decide what type of probate process should be used and which beneficiaries need to be noticed and how.

   • Contact information:  Addresses, phone numbers, and email addresses of all of the beneficiaries of the will are used by the attorney to send the appropriate notice to the appropriate people. At the very least, certified mail has to be sent to them, but things move faster and cheaper if beneficiaries will actively cooperate via less official means.

3. Attorney files probate applications: The attorney drafts and files an application that basically says, “These are the basic facts of the case. Please let us come before the court to prove all of it.” Once the court accepts the application, the parties are required to wait while the required notices are sent to the required places for the required period of time. During this waiting period, the executor can continue to gather information about assets & liabilities.

4. Hearing: In almost every situation, the executor has to appear in-person in the court in the same county where the decedent had a permanent address when they died. Most of those hearings should take less than 10 minutes and the executor swears under oath in front of a judge: the facts in the application are true, the will presented is truly the decedent’s last will and testament, and that the executor will follow the will and follow the law.

5. Required steps after the hearing: If the hearing goes well, the executor will get Letters Testamentary from the court. Letters Testamentary are the ultimate authority from the court that will allow the executor to step into the shoes of the decedent. The executor can use Letters Testamentary to sell the decedent’s house, liquidate bank accounts, close investment accounts, and negotiate the decedent’s contracts. Receiving Letters Testamentary sets a few deadlines:

   • Lawyer: The lawyer will take care of some things that are required by law like posting notice in the newspaper, sending notice and/or waivers to beneficiaries, and sending other notices to certain creditors.

   • Executor: The executor has to open an estate account at the bank so that funds from liquidated assets can be deposited. Except for some specific assets that are supposed to be distributed directly to certain beneficiaries, most assets will be liquidated and put into that account.

6. Creditors: If the decedent owed any money, creditors’ “robots” will know about it when the case is filed. Any creditors that show up have to be dealt with: paid off, negotiated down and then paid off, or the parties can argue in court about whether or not the debt is legitimate.

7. Provide accounting: The executor must provide an accurate accounting of what assets/accounts have what value and what creditors are due what amounts. A copy of that accounting will need to be given to each beneficiary of the will. This accounting has to be given to the court within a certain period of time as required by law.

8. Distribute assets: Once all of the creditors have been taken care of, the money in the estate account (along with any other specific assets that haven’t been distributed yet) can be distributed according to the will in the percentages and to the people as laid out in the will.

9. Close estate: Close the estate with the court. It’s important that the estate is closed with the court in the correct amount of time. While the case is open, the executor has the authority with Letters Testamentary to take care of things, so it needs to be left open long enough to ensure everything is settled. However, if the case stays open too long, then the executor is open to liability for longer than they need to be.

Again, this is a very broad and general timeline for the probate process. There are a million reasons why your process could be different. The above list is a outline, but not the whole story.