Probating is the process in which a person’s will validated and an executor is found qualified and appointed by a court. The executor will then identify property, appraise the property, notify creditors, pay taxes and debts and then distribute the remaining property according to the terms of the will.

Probating a Texas Will

In order for a will to be probated in Texas the following items must be proved:

1. The testator, or the person whose will is to be probated, must be deceased. Texas law does not allow for the probating of a will while of a person who is still living. A will is known as an ambulatory document and is not effective until death. This also means that a will can be changed at any time before death so long as the testator retains capacity to make such changes.

2. A will typically must be probated within four years of the date of the death of the testator. Under certain circumstances a court may allow a will to be probated as a muniment of title after four years, but an executor cannot be appointed after four years. For a more in-depth discussion on Probate as Muniment of Title see What’s the Law Series: Probate (Part 1).

3. The will must be probated in a court with competent jurisdiction. Typically, a will is probated in the statutory probate court or the county court exercising jurisdiction over the county in which the testator died.

4. A will drafted by an attorney is typically self-proved which means that the requisite witnesses signed an affidavit attesting to the facts necessary to support a court’s conclusion that the will was properly executed by the testator. In the event a will is not self-proved the court will require testimony from one of the witnesses concerning the events surrounding the execution of the will.

5.The executor named in the will must be qualified to serve as executor. This generally means that the executor can’t have any conflicts of interest with the testator and he must not have been convicted or a felony or a crime involving moral turpitude. For more information about the role and duties of executors see What’s the Law Series: Probate (Part 2).

6. Finally, if the will is from another state or a foreign country, the will can be probated if the will was self-proved in accordance with the law from where it was made. For example, if a will created in Oklahoma was self-proved according to the requirements in Oklahoma, it could be probated in Texas. If not, the court will likely requirement live testimony from a witness.

The Takeaway: There can be many steps and requirements to getting a will probated. It is important to understand the law and requirements to make sure the process goes smoothly.

 
– The Business Team
Scott | Josh | Jeremy

The Allen Firm, PC
181 S. Graham Street | Stephenville, Texas 76401
Ph: 254.965.3185 | Fax: 254.965.6539

 

The Allen Firm, PC is composed of a team of attorneys located in Stephenville, Texas. Our mission is to improve people’s lives by providing reliable and practical help with their legal matters while operating under our values of honoring people, operating with integrity and striving for excellence. We offer help in forming businesses or companies, estate planning, lawsuits, real estate, probate, oil and gas, collections, agriculture, bankruptcy, family law, and accident and injuries.

 
 

*This article has been written and provided for educational purposes in an attempt to provide the reader with a general understanding of the particular topic and area of law covered in this Article.  It is not to be relied upon for any purpose.  The reader acknowledges the underlying analysis and legal conclusions referenced in this Article may be inaccurate by the changing of the law or by a controlling court opinion to the contrary.  No attorney-client relationship exists until an appropriate engagement letter has been signed. Contact our Firm to discuss how the contents of this Article may apply to your specific situation.