Probate of a Will

Probate is the legal process that transfers title of property from the estate of the person who has died, known as the "decedent", to his or her beneficiaries.  Probate is usually required when the decedent owned real property or financial accounts. 

A Will is a legal document written to ensure that upon the Will writer's death, the writer's property is given to the people specified in the Will.  For a Will to have any legal effect, it must be "proved-up" in a Probate or County Court to prove it is valid.  An application for probate of a Will should be brought within four years after the death of the of the person making the Will.  The application may be made by the executor named in the Will or by any person interested in the estate.  Persons interested in the estate include heirs, devisees, spouses, creditors, and any other persons having a property right in, or claim against, the estate.  There is no requirement that the attorney who drafted the Will be the attorney who probates the Will.  The executor is free to hire the attorney of his or her choice. 

In addition to offering the Will for probate, the applicant can request that the Court open an administration of the decedent's estate if there is a necessity for administration.  Such a necessity shall be deemed to exist if two or more debts exist against the estate, if it is desired to have the court partition the estate among the distributees, or if other instances of necessity exist.  If a necessity for administration exists, then the court can order an administration of the estate.

Four Quick Steps to Probating a Will

Step 1: Select the Type of Administration

Step 2: Select the Payment Arrangement (Flat fee available in some cases.)

Step 3: Print and Complete Prospective Client Information Worksheet

Step 4: Mail the Completed Prospective Client Information Worksheet and COPY of the Will to the Firm

Step 1: Select the Type of Administration

Probate of Will as a Muniment of Title Only (No Administration).

When used.  To admit the Will to probate so as to give it legal effect.  This type of proceeding is often used when the decedent left a Will and the only assets in the estate are the decedent's home or a very small bank account.

Requirements.  In order for the court to issue an Order Admitting Will to Probate as a Muniment of Title Only, the following requirements must be met:

1. The decedent must have left a valid Will;

2. There must be no debts due and owing by the estate (or the only debts that are owed are secured by liens on real estate); and

3. There must be no need for a formal administration.

Procedure.  The original Will and an Application for Probate of Will as a Muniment of Title Only are filed with the Court.  If approved, the court will issue on Order Admitting Will to Probate as a Muniment of Title Only.

Administration.  No.  The court does not appoint an executor or administrator in this type of proceeding because no formal administration is necessary.  The court's Order Admitting Will to Probate as a Muniment of Title Only constitutes sufficient legal authority to all persons to pay or transfer estate property to the person or persons described in the Will as the beneficiary of the particular asset. 

Some financial institutions, however, may insist on only releasing estate funds to a court-appointed executor or administrator.  The institutions do this by insisting that they receive "Letters Testamentary" or "Letters of Administration" prior to releasing estate funds.  These "Letters" are the documents issued by the court to the court-appointed executor or administrator.  If your loved one had securities or significant bank accounts, you may be forced to ask the court for an administration.  Therefore, you should check with the decedent's financial institutions before selecting this type of probate proceeding.

Independent Administration (Unsupervised Administration).

When used.  To admit the Will to probate so as to give it legal effect and to appoint an executor to administer the estate.  This type of proceeding is the most common type of probate where the decedent left a Will.

Requirements.  In order for the court to issue an Order Admitting Will to Probate and Authorizing Letters Testamentary, the following requirements must be met:

1. The decedent must have left a valid Will;

2. There must be a need for a formal administration; and

3. The Will must provide for independent administration by appointing a person to serve as "Independent Executor" or by providing that no other action shall be had in the court in relation to the settlement of the estate than the probating and recording of the will, and the return of an inventory, appraisement, and list of claims of the estate.

Procedure.  The original Will and an Application to Probate Will and for Letters Testamentary are filed with the Court.  If approved, the court will issue an Order Admitting Will to Probate and Authorizing Letters Testamentary.

Administration?  Yes.  The court appoints an executor and issues Letters Testamentary to the executor.  The executor will then be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the heirs of the estate in accordance with the terms of the Will.  In an independent administration, the executor of the estate acts independently from the court.  That is, the executor does not need the court's permission to pay bills or to sell or distribute the assets of the estate.  The executor need only admit the Will to probate and file an inventory of the estate's assets with the court.

Court Created Independent Administration (Unsupervised Administration).

When used.  To admit the Will to probate so as to give it legal effect and to appoint an administrator to administer the estate.  This type of proceeding is used when the decedent left a Will but no executor is named in the decedent's Will, or in situations where each executor named in the Will is: 1) deceased;  2) disqualified to serve as executor; 3) unable or unwilling to serve as executor; or 4) is not granted independent status. 

In this situation, all of the distributees of the decedent must agree on the advisability of having an independent administration and must agree on the person to serve as independent administrator.

Requirements.  In order for the court to issue an Order Admitting Will to Probate and Authorizing Letters of Administration, the following requirements must be met:

1. The decedent must have left a valid Will;

2. There must be a need for a formal administration;

3. All of the distributees of the decedent must agree on the advisability of having an independent administration and collectively designate in the application for probate, a qualified person to serve as independent administrator;

4. The Court must find that it is in the best interest of the estate to grant an independent administration.

Procedure.  The original Will and an Application to Probate Will and for Letters of Administration Pursuant to Section 145 of the Texas Probate Code are filed with the Court.  If approved, the court will issue on Order Admitting Will to Probate and Authorizing Letters of Independent Administration.

Administration?  Yes.  The court appoints an administrator and issues Letters of Administration to the administrator.  The administrator will then be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the distributees of the estate in accordance with the terms of the Will.  In an independent administration, the administrator of the estate acts independently from the court.  That is, the administrator does not need the court's permission to pay bills or to sell or distribute the assets of the estate.  The administrator need only admit the Will to probate and file an inventory of the estate's assets with the court.

Dependent Administration (Supervised Administration).

When used.  To admit the Will to probate so as to give it legal effect and to appoint an administrator.  This type of proceeding is used when the decedent left a Will but no executor is named in the decedent's Will, or in situations where each executor named in the Will is: 1) deceased;  2) disqualified to serve as executor; 3) unable or unwilling to serve as executor; or 4) is not granted independent status.

In this situation, all of the distributees of the decedent cannot or will not agree on the advisability of having an independent administration or the choice of administrator.  This frequently is the case when the beneficiaries are hostile towards one another or one of the beneficiaries is a minor child.

Requirements.  In order for the court to issue an Order Admitting Will to Probate and Authorizing Letters of Administration, the following requirements must be met:

1. The decedent must have left a valid Will; and

2. There must be a need for a formal administration.

Procedure.  The original Will and an Application to Probate Will and for Letters of Administration are filed with the Court.  If approved, the court will issue on Order Admitting Will to Probate and Authorizing Letters of Administration.

Administration?  Yes.  The court appoints an administrator and issues Letters of Administration to the administrator.  The Administrator will then be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the distributees of the estate in accordance with the terms of the Will.  In a Dependent Administration, the court closely supervises the administration of the estate.  Bills cannot be paid and assets cannot be sold or distributed without the approval of the court.  Periodic accountings must also be prepared to advise the court of the status of the estate.  The amount of attorney time in this type of proceeding is generally a function of the number of creditors of the estate, the amount and character of the assets in the estate, and the amount of contention amongst the distributees. 

Step 2: Select the Payment Arrangement

Hourly-Fee Probate.

If a dependent administration is required, if you cannot locate the original Will, or if another person is contesting your Application for Probate of Will, there is no way to know in advance how long or how difficult the case will be.  There is also no way to estimate costs.  The only fair way to bill attorney's fees for these types of cases is to bill fees on an hourly basis and bill costs as they are incurred.  No flat fees are available.  Effective January 1, 2007, The Duran Firm's hourly rate for attorney's fees is $195.00 per hour.

Fixed-Fee Probate.

The Duran Firm can often assist the executor named in the Will or an agreed upon administrator for a fixed fee.  In fact, the overwhelming majority of the Firm's clients have qualified for fixed-fee probate.  The type of administration required determines whether or not a fixed fee is possible.  Of course, the Duran Firm cannot quote you a fee until the facts and circumstances of the case are determined and the original Will is examined.         

In order to be eligible for consideration for a fixed fee, the following conditions must be met:

1. The Decedent must have been a resident of Dallas County, Texas.
    

2. The Decedent's date of death must have been within the last four years.
    

3. The matter must remain uncontested, i.e. the family must be in agreement as to an independent administration, the distribution of the estate, and the choice for executor or administrator.
    

4. The executor must be in possession of the original Will (not a copy);
    

5. The Will must appoint an "Independent Executor" or provide for "Independent Administration" or the probate must be a muniment of title proceeding; and
    

6. The Will must be "self-proved."  A self-proved Will usually has a notarized affidavit attached to the back of the Will stating that the Decedent and the witnesses complied with the requirements of due execution of a Will in Texas.  The affidavit must be in substantial compliance with the Texas Probate Code Section 59:

THE STATE OF TEXAS

COUNTY OF ________________

Before me, the undersigned authority, on this day personally appeared _______________, _______________, and _______________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said _______________, testator, declared to me and to the said witnesses in my presence that said instrument is his last will and testament, and that he had willingly made and executed it as his free act and deed; and the said witnesses, each on his oath stated to me, in the presence and hearing of the said testator, that the said testator had declared to them that said instrument is his last will and testament, and that he executed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of the said testator and at his request; that he was at that time eighteen years of age or over (or being under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service) and was of sound mind; and that each of said witnesses was then at least fourteen years of age.

(Signed)                                    

Testator

(Signed)                                  

Witness

(Signed)                                  

Witness

Subscribed and sworn to before me by the said ____________, testator, and by the said ________________ and _______________, witnesses, this ______ day of ________________, _______ A.D.

(SEAL)

(Signed)                                                  

Notary Public of the State of Texas

The Duran Firm likes to give you a complete picture of what you can expect to pay for your probate case.  Thus, we have included your other expected out-of-pocket costs in our estimates.  If you are shopping around, be sure to ask whether the quoted price includes filings fees and other out-of-pocket costs.

Fixed-Fee Uncontested Probate of Will as a Muniment of Title for a Self-Proved Will

In this type of proceeding, the court admits the Will to probate so as to give the Will the legal effect of transferring title to property.  Because no formal ongoing administration is required, the probate of a Will as a muniment of title is easier and cheaper than a probate that includes administration.  The estimated fees and costs for an uncontested probate of a will as a muniment of title are as follows:

This fixed fee includes assistance with the following tasks only:

1. Initial consultation with an attorney;

2. Preparation of an Application to Probate Will as a Muniment of Title Only;

3. Preparation of the Proof of Death and Other Facts;

4. Preparation of the Order Admitting Will to Probate as a Muniment of Title Only; and

5. Attendance by an attorney at the hearing on the Application.

Since no administration is required, all other tasks not specifically listed above are tasks that can be accomplished by you as a distributee of the estate.  Usually this merely involves distributing the property to the distributees of the estate.  Most clients do not require additional assistance but if you require further help, the Firm will be glad to help you with those tasks at the Firm's hourly rate.  The Firm will, of course, seek your approval before incurring any hourly charges.  The good news is that the overwhelming majority of the Firm's past fixed-fee cases involved no hourly charges. 

Fixed-Fee Uncontested Independent Administration for a Self-Proved Will

In this type of proceeding, the Court admits the Will to probate so as to give the Will the legal effect of transferring title to property.  The Court also appoints an executor to administer the estate.  This is our most common type of probate.

The estimated fees and costs for an uncontested independent administration are as follows:

This fixed Attorney's Fee includes assistance with the following tasks only:

1. Initial consultation with an attorney;

2. Preparation of an Application to Probate Will and for Letters Testamentary;

3. Preparation of the Proof of Death and Other Facts;

4. Preparation of the Order Admitting Will to Probate and Authorizing Letters Testamentary;

5. Preparation of the Oath of the Executor;

6. Attendance by an attorney at the hearing on the Application;

7. Preparation of the Inventory, Appraisement and List of Claims;

8. Preparation of the published Notice to Creditors (not to include publishing fees); and

9. Preparation of up to ten† Notices to Beneficiaries (not to include certified mail costs).

† The Duran Firm stays on top of changes to Texas probate law.  A recent change to the Texas Probate Code provides that notice must be given to all beneficiaries named in a Will in those estates where the decedent died on or after September 1, 2007.  Conceivably, a decedent's Will could leave property to a large group of persons, thus requiring notice to hundreds of people.  Because such a possibility exists, the Firm must limit the number of Notices to Beneficiaries that it will agree to prepare under a fixed-fee arrangement.  

These are the tasks that are normally accomplished in the course of a representation by a probate attorney in a Texas independent administration.  The remaining Executor's duties not specifically listed above are tasks that can be accomplished by you as the Independent Executor with your Letters Testamentary.  Most clients do not require additional assistance but if you require further help, the Firm will be glad to help you with those tasks at the Firm's hourly rate.  The Firm will, of course, seek your approval before incurring any hourly charges.  The good news is that the overwhelming majority of the Firm's past fixed-fee cases involved no hourly charges.

Fixed-Fee Uncontested Court-Created Independent Administration with Will Annexed for a Self-Proved Will

If an no executor is named in the Will or an executor is named in a decedent's Will, but the Will does not provide for independent administration, all of the distributees of the decedent's Will may agree on the advisability of having an independent administration and agree on the person to serve as independent administrator.

In this type of proceeding, the court admits the Will to probate so as to give the Will the legal effect of transferring title to property.  The court also appoints an administrator to administer the estate pursuant to the agreement of the distributees named in the decedent's Will. 

The estimated fees and costs for an uncontested court-created independent administration are as follows:

This fixed Attorney's Fee includes assistance with the following tasks only:

1. Initial consultation with an attorney;

2. Preparation of an Application to Probate Will and for Letters of Administration Pursuant to Section 145 of the Texas Probate Code;

3. Preparation of the Distributee's Consent and Waiver of Notice for all beneficiaries named in Will;

4. Preparation of the Proof of Death and Other Facts;

5. Preparation of the Order Admitting Will to Probate and Authorizing Letters of Administration;

6. Preparation of the Oath of the Administrator;

7. Attendance by an attorney at the hearing on the Application;

8. Preparation of the Inventory, Appraisement and List of Claims; and

9. Preparation of the published Notice to Creditors (not to include publishing fees).

These are the tasks that are normally accomplished in the course of a representation by a probate attorney in a Texas independent administration.  The remaining Administrator's duties not specifically listed above are tasks that can be accomplished by you as the Independent Administrator with your Letters of Administration.  If you require assistance with any other tasks, the Firm will be glad to help you with those tasks at the Firm's hourly rate.  The Firm will, of course, seek your approval before incurring any hourly charges.  The good news is that the overwhelming majority of the Firm's past fixed-fee cases involved no hourly charges. 

Other Estate Administration Expenses

Surety Bond. If the Will does not waive bond, then the Judge may require the Administrator to obtain a surety bond issued by a bonding company.  The amount of the bond is usually equal to the amount of debt owed by the estate and the amount of assets in the estate, not including real estate.  The bonding company charges a premium for this service that is usually a small percentage (1-2%) of the bonded amount.

Step 3: Print and Complete Prospective Client Information Worksheet

To start on your case, the Executor named in the Will should download the Prospective Client Information Worksheet for Probate of Will by clicking on the link below:

 Prospective Client Information Worksheet for Probate of Will

The Worksheet is a downloadable Adobe^® PDF file.  If you are having trouble downloading the file, you may have to install the Adobe^® Reader^®:

Step 4: Mail the Completed Prospective Client Information Worksheet and COPY of the Will to the Firm

Once the named executor has fully completed the Client Information Worksheet, he or she should send the completed Worksheet and a copy of the decedent's Will to:

The Duran Firm
3102 Maple Ave., Suite 625
Dallas, Texas 75201

NEVER SEND THE ORIGINAL WILL THROUGH THE MAIL.

A representative from the Firm will contact you upon receiving the Worksheet to discuss payment and to coordinate the delivery of the original Will and the signing of the Application for Probate.  If you do not hear from the Firm within 1 week of mailing, please call to follow up...

Cash, checks, money orders, MasterCard and Visa are accepted for the payment of attorney's fees and expenses.

No claim to government works. Otherwise, © The Duran Firm, PLLC 2006-2008.

Disclaimer: This website is designed for general information only.
The information presented should not be considered or construed to be legal advice.
Moreover, this site does not create an attorney-client relationship.
The attorney responsible for this site is Michael A. Duran, a Dallas Probate Attorney.
The Duran Firm's principal office is located in Dallas, Texas.