Frequently Asked Questions About Estate Planning & Probate

I recently moved to Texas. Is the will I had in my former state still valid?

Your will may still be valid, if it meets the requirements set out in Texas law. However, even if a Texas court would consider it to be a valid will, it may lack certain elements — such as a self-proving affidavit and provision for an independent administration — that could substantially reduce the cost of probate.

‍What is a self-proving affidavit?

This is a sworn statement given by the testator (the person making the will) and the witnesses before a notary. It establishes details of the signing.

‍What does probating a will mean, and why do I need to do it?

‍Probating a will is the process by which a court recognizes that the document offered is, in the eyes of the law, the valid will of the decedent (the deceased person). The Texas Estates Code provides that a will is not effective until it is probated.

The process can be relatively straightforward. An application to probate the will is filed, along with the original will itself, and a citation (an official notice) is posted at the county courthouse. Approximately two weeks later, the applicant (the person offering the will for probate) goes to court. After a short hearing that includes sworn testimony, the judge is presented with a proposed order finding the will is valid, admitting it to probate and appointing an executor.

The admission of the will to probate is the beginning of the probate process. An experienced attorney can help you navigate what remains of the probate process while you focus on family and loved ones.

‍What happens if a person dies without a will?

A person dying without a will is said to die intestate. There may still be a need for an administration of the estate, but in addition, there may have to be a court determination of heirship to decide who inherits the person's assets. This has the potential to add expense to the administration of the estate, in part because it requires the appointment of one or more attorneys ad litem in addition to the lawyer representing the applicant for administration.

‍What is involved in the administration of an estate?

‍The "personal representative" of the estate — an executor or administrator — gathers the assets, deals with creditors and distributes the estate. In an independent administration, most or all of these tasks may be accomplished without going back to court. In a dependent administration, payment of creditors' claims and distribution of assets require court approval, which adds to the expense of the process. There may be certain circumstances, however, where this court supervision is desirable, such as in a case where there are disputes about the validity of certain creditors' claims.

Scanio & Scanio, A Professional Corporation, serves clients throughout Central Texas. To arrange a consultation with one of our attorneys, call our San Marcos office at 512-396-2016 or send us an email.