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March 13, 2020
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FREQUENTLY ASKED QUESTIONS ON PROBATE AND ESTATE ADMINISTRATION IN TEXAS



Common Legal Terms
  • Decedent - a person who has died
  • Descendant - a person's child, grandchild, and all the offspring in direct line of descent
  • Executor - a person or entity appointed by the testator to carry out the provisions of his or her will.
  • Testator - a person who has made a will
  • Heir-at-law - an heir by right of blood
  • Estate - all the assets of the decedent

WHAT IS PROBATE?
Probate is a process in which the probate court recognizes the death of a a person, wind up his or her estate, oversee the payment of the person's debts and distribute his or her estate. The probate process can be simple or complicated depending on the size, location ad complexity of the estate.

HOW LONG IS THE PROBATE PROCESS?
The probate process starts with the attorney, representing the executor named in the will, filing the application for probate in the probate court where the estate of the decedent is located. The clerk of court will post the required notice. There will be a hearing in the probate court where the application was filed to determine whether the will was validly executed and will be admitted to probate. The presiding judge will then issue an order appointing the executor named in the will and will issue "Letters of Testamentary." Once the Letters of Testamentary is issued, the executor can now start gathering the assets of the decedent, pay bills and other expenses, eventually distribute the assets to the beneficiaries named in the will and exercise all the powers granted to him or her as executor in the will.

WHAT ARE THE REQUIREMENTS OF A VALID  FORMAL WILL?
The basic requirements of a will include: (1) it must be in writing; (2) it must be written with testamentary intent; (3) the testator must have testamentary capacity to execute a will (must be over 18 years old and of sound mind); (4) must be signed by the testator or by another person under his direction and in his presence; (5) the will must be attested by two or more credible witnesses over 14 years of age; and (6) the witnesses must signed in the presence of the testator.

WHAT IS HOLOGRAPHIC WILL?
The general requirements of a holographic will include: (1) the will must be in writing, (2) must be written entirely in the testator's hand; (3) the will must be signed by the testator; (4) the testator must have testamentary intent; and (5) the will must have testamentary disposition (states specifically who gets what).

WHAT IF THE PERSON DIES WITHOUT A WILL?
A person who died without a will is considered to have died intestate. This means that the decedent's estate will have to go through the intestacy probate process of the state.

WHAT ARE NON-PROBATE ASSETS?
Non-probate assets are properties of the decedent that are not part of his or her probate estate. This means that the non-probate assets may pass without the need for probate. Examples of non-probate assets are life insurance, retirements, TODD related to any real property (Transfer on Death Deed); or bank accounts that are payable on death.


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