Probate, what is it? How do you prepare for the appointment with the probate attorney and how do you select the attorney to assist with you with the administration? The time immediately after a loved one’s passing is a difficult and stressful time. Grief, coupled with decision making, can leave you with a feeling of panic about what to do first.  An experienced probate attorney can offer support, guidance, and counseling during this difficult time.

What is Probate? Probate is the legal procedure that an estate goes through when a person passes away. Property owned by a person at death that has not been transferred through trust, joint ownership with rights of survivorship, or designated to a beneficiary directly by way of a beneficiary designation, must go through the legal process of probate.

During probate, the Texas court will authenticate the decedent’s Will (if there is a Will), or determine the heirs of the deceased. Your attorney will help you determine what type of probate is necessary and whether there is a need to open an administration and have the court appoint an Executor or Administrator. The type of administration available will vary depending upon the whether there is a Will and what type of administration is available for your specific facts. For instance, an independent administration is preferable as it is often faster and less expensive to settle the estate. The Executor, or in some cases an Administrator, will work with their attorney to settle and pay all debts and taxes and distribute the remaining property as instructed by a Will, or if there is no Will, according to the laws of intestacy of Texas.

Selection of Attorney. Most Texas courts will require an Applicant in a probate matter to have legal counsel if an estate administration will be opened and an Executor or Administrator will be serving to administer the estate. Careful thought should be given to selecting an attorney to assist with the probate of an estate. You should look for someone with significant experience in estate settlement and probate. Some estates will also necessitate selecting a attorney with a background in tax law. You should reach out to friends, family and colleagues and inquire if they could recommend a probate attorney they have previously worked with, or you may consider contacting your regional bar associations or local courts about experienced Texas probate attorneys.

What documents will be needed to Probate? Before meeting with the probate attorney, you should attempt to locate the following documents:

• Original Will of the decedent (if there is one), if there is not a will you should familiarize yourself with the next of kin of the decedent. The probate attorney can guide you in determining which of the decedent’s relatives are the intestate heirs if there is no will, or if the Decedent’s will lapses to the heirs of their estate. You will need addresses and other contact information for the beneficiaries named in the decedent’s will or the next of kin of the decedent if there is no will.
• Death Certificate
• Full copy of an account statement that includes the date of death for every account the decedent owned or had an interest in at death
• Copies of insurance polices
• Deeds for any real estate
• Documentation for any mineral or royalty interests
• Stock certificates or other documentation for investments
• Social security number and state ID number for the decedent
• Documentation or entity information for any businesses entities or proprietorships
• Past income tax returns and gift tax returns
• Information about safe deposit boxes
• Automobile titles or other documentation for vehicles or recreational vehicles
• Information or past appraisals for valuable personal property, such as jewelry, artwork, or other collectibles
• Any other asset information you think the decedent may have owned that the probate attorney will need to know about
• Information and/or documentation of the decedent’s debts

This is not an exclusive list of what all will be needed for probate, but most of the documents listed will likely need to at least be reviewed during the probate process.

Time for Probate. In Texas a Will must be offered for probate within four years of a Decedent’s date of death. There are some exceptions to the four year rule, but for the most part you have four years to have a Will admitted to probate. After four years, the type of probate available is limited and a decedent’s heirs at law may have the opportunity to object to the probate of a Will after four years.

If the thought of getting everything together to meet with the attorney is a bit daunting, do not hesitate to reach out to the probate attorney to discuss proceeding with the probate without all of the above documentation. In some instances, you may not have sufficient knowledge of the decedent’s assets or debts to collect much of the information you will need to proceed with probate. Most attorneys will have the experience to provide you with guidance on where to locate much of this information if it is not readily available to you.

ABOUT THE AUTHOR

Joy Eckelkamp is a member of Rapp and Krock’s Probate, Estates, Elder Law, and Trusts Group, is  Certified as an Elder Law Attorney through the National Elder Law Foundation,  and has been and servicing families and their legal needs in estates and trust law for 22 years.