How Probate Process Works

What is Probate and How Does it Work?

If the person who has passed away, the decedent, had the foresight to make a will, then the procedure in Texas is straightforward if the will is a valid Texas will with the required language. For the will to have legal effect and for the person named as executor in the will to have legal authority, the will must go through a legal procedure called probate. This is also called admitting the will to probate. The will has no legal force and effect until this is done. In addition, the person named executor in the will has no legal authority until they are appointed by the court in the probate process. If the will was drawn up by an attorney, then the required wordage should be present. If so, this will make the process less complicated than if the decedent tried to make their own will. 

When a loved one passes away, and they have left a legal will drawn up by an attorney, the process should go something like this: 

1. ATTORNEY RECEIVES WILL - The person named executor in the will locates the original will with signatures and takes it to an attorney to probate the will. 
2. APPLICATION FILED BY ATTORNEY - The attorney draws up a legal document called an APPLICATION TO PROBATE WILL AND FOR LETTERS TESTAMENTARY. The executor does not have to sign this application as it only requires the attorney’s signature. 
3. E-FILING - The attorney e-files the application through the electronic filing system with the probate courts. A copy of the will is attached. 
4. CLERK ASSIGNS CASE TO A PROBATE COURT - Once the application is filed, the probate clerk assigns the case to a probate court (Dallas, Tarrant, and Denton counties have more than one probate court) and also assigns a case number to the case. 
5. ATTORNEY FILES ORIGINAL WILL - Once this case number can be retrieved from the court, the attorney will then file the original will with the probate clerk. Some attorneys mail the original will to the court or send it by courier. This law office files the original will in person with the probate clerk to ensure maximum security. 
6. NOTICE POSTED - The probate clerk then posts a notice on the court’s bulletin board stating the name of the deceased, the name of the applicant, and that the will has been filed for probate. 
7. NOTICE RETURNED TO CLERK - After the notice has been on the bulletin for ten days, it is returned to the clerk. 
8. CASE SET FOR COURT HEARING - Once the notice is returned to the clerk, the attorney can then set the case for a hearing before the court. 
9. ATTORNEY NOTIFIES CLIENT OF HEARING - The attorney will then advise the applicant, the person named in the will as executor, of the date and time of the hearing.
10. ZOOM OR COURT HEARING - Many courts hold their hearing by Zoom, while other courts prefer to have a live hearing in front of the judge down at the courthouse. If it is a Zoom hearing, you will most likely go to the attorney’s office for the hearing and have it over video conference. If it is at the courthouse, our attorney will accompany you to the courthouse, and then the hearing will be held in front of the judge. 
11. ONE WITNESS NEEDED (CLIENT) - If the will to be probated was drawn up by an attorney, then the will should have a “self-proving affidavit,” which means that the persons who witnessed the decedent signing their will do not have to appear in court to testify. The only witness needed is the applicant/executor (the client). 
12. ATTORNEY QUESTIONS WITNESS - Whether the hearing is in person or by Zoom, the attorney will ask questions of the applicant/executor (client) which will prove up the facts needed for the judge to admit the will to probate, that is, to declare that the will meets all the legal requirements to have legal authority. The judge will also formally appoint the applicant as the executor of the estate 
13. EASY QUESTIONS FOR WITNESS - The questions the attorney will ask should be simple and straight forward with all the answers from the applicant being “yes.” For example—the attorney might ask the following questions:
    (1) Your name is ____, is that right?
    (2) You are appearing today for the estate of (name of the decedent), is that correct?
    (3) The decedent was your (spouse, father, mother, etc.) is that right? 
    (4) And they passed away on (date of death), is that right?
    As you can see, the questions are phrased so the applicant is merely affirming the facts stated by the attorney. There are about twenty to thirty questions that cover all the facts needed for the probate of the will, and an experienced attorney can usually do this in a short amount of time, barring any complications (see section on “Will Problems”).
    
14. JUDGE ADMITS WILL TO PROBATE AND APPOINTS INDEPENDENT EXECUTOR - Once the hearing is finished, the judge will state that the will is admitted to probate and that the applicant is appointed independent executor. An independent executor can make transactions for the estate without going back to court for the court’s permission. They have independent authority in the state of Texas if this designation is made in the will. Most attorney-drawn wills have this provision. 
15. CLIENT/APPLICANT SIGNS DOCUMENTS - The applicant will then sign a document called Proof of Death and Other Facts, which is simply a written list of the facts proved in the hearing. The applicant will also sign a written oath that all executors must take. If the hearing is at the courthouse, then the signing is done in front of the judge. If it is by Zoom conference, then the applicant will sign the documents in front of a notary who is present with the applicant at the hearing.
16. JUDGE SIGNS ORDER - The judge will sign an order admitting the will to probate and appoint the applicant as the executor of the estate. If the hearing is at the courthouse, the judge will sign the order and put it inside the jacket of the case and hand it to the attorney. The attorney will then take the client to the probate clerk to obtain “letters testamentary.” The letter testamentary is a one-page document with the court’s seal on it, providing legal proof that the person so named in the letters has been appointed executor. If the hearing is done by Zoom, then the attorney will e-file the oath and proof signed by the applicant and wait for the order to be received by the probate clerk. When this is done, the attorney can then get the letters from the court. 
17. POST-HEARING DUTIES OF EXECUTOR (PERFORMED BY ATTORNEY) - The attorney will then do the following: 
    (1) Give the letters testamentary to the executor. (Letters testamentary serve as identification that the person is the executor for the estate. It can be used with banks, financial institutions, real estate sales, etc.) 
    (2) Notify creditors by posting a notice in the local paper.
    (3) Notify the beneficiaries (persons receiving property) in the will that the will has been probated, the applicant has been named executor, and provide them with a copy of the will.
    (4) Prepare an inventory and appraisement of the estate assets for the executor to sign and file this with the court.
    (5) Help the executor with the transfer of real property, setting up estate accounts, notifying secured creditors, and other duties of the executor.