All wills in Texas pass through the appropriate Probate court for the county in
which the maker of the will died. In Harris County, there are four Probate Courts.
There is one for Fort Bend County. With the assistance of an experienced attorney
like Robert Hohenberger and his skilled staff, and a clearly and properly drafted
will, your estate can be probated quickly and efficiently.
Probate courts provide various documents required to probate the will, so that the
decedent's estate can be managed and distributed according to the Testator/Testatrix's
wishes, as reflected in the terms of the will.
Some of the documents issued by the Probate Court are:
Muniment of Title
Letters of Administration
Administration with Will
Application for No Administration
Foreign Will with Letters
Determination of Heirship
The most streamlined process for getting a will through the Probate Court involves a
kind of will known as "self-proving." This means that the will is properly witnessed
and executed in one step, and states that the Executor or Executrix of the will
shall serve without bond. In other cases, the Executor must post a bond with the
Probate Court, which slows the process down considerably. If the will is not
self-proving, the process of attesting and executing the will can become more
Probating Wills in Texas
The basics of the process of probate go in measured steps. First, the will is filed
for probate by the Executor or Executrix named by the person who executed the will.
An Application to Probate Will is filed in the appropriate county, usually by an
attorney for the Executor. The case is then assigned to one of the Probate Courts
and a hearing is set. The Executor or Executrix testifies to the Fact of Death
(of the maker of the will) and swears before the Court that he or she is not
disqualified for any reason from serving as the Executor. The Court then signs an
Order admitting the will to probate, and the Executor takes an Oath of Office as
Executor before the Clerk of the Probate Court.
Within sixty days of the hearing that establishes the Executor as a sworn agent in
the eyes of the Probate Court, the Executor must file a Sworn Inventory and
Appraisement of all the property and other assets in the estate of the maker of the
will. Once the Probate Judge has signed off on this Inventory, the Executor is
legally empowered to collect and distribute the property and assets of the estate,
as described in the will.
Letters Testamentary and Muniments of Title - necessary for the release to the
Executor of various types of property in the estate - are issued for a fee, as are
Death Certificates. Armed with a Letter Testamentary (and sometimes a Death
Certificate as well), the Executor can sell real estate, withdraw funds from bank
accounts, sell vehicles, or otherwise liquidate any assets left to devisees named
in the will.
In most cases this process is uneventful and efficient. Delays and problems arise
if the will is poorly drafted, there are devisees or heirs who cannot be found,
people contest the will, witnesses to the will have disappeared or died, or
devisees decide to fight over who should get what and hire attorneys to represent
the rival claimants.
Perhaps the most important way to ensure that your wishes are followed is to seek
help from an experienced attorney so that your will is drafted in terms which are
ironclad and clear, and do not offer loopholes for alternative interpretations.
Once the language is thoroughly reviewed and the will is ready to be executed and
attested, there is a simple process under Texas law which provides the easiest and
simplest way to obtain a valid, executable will. This is the method known as the
Self-Proving Wills in Texas
Under Texas law, a will can be executed without a bond if the language of the will
states this clearly. If this language is not included, the Executor must secure the
property contained in the estate by posting a bond with the Court. If the language
of the will instead states clearly that the Executor does not have to post a bond
in order to manage the estate, and the will is "self-proving," the case is called
an Independent Administration. So long as the will is properly attested - witnessed
and sworn to, before a Notary - the will can be probated easily and quickly. No
witnesses are required to appear in Court for the will to pass through probate.
A valid attested will requires the maker's signature and the signature of two or
more credible witnesses. A credible witness is a competent person older than 19 who
is not a beneficiary of the will.
An attested will may be made "self-proving" at the time it is signed, or anytime
afterwards before the maker of the will dies. To do so, the maker of the will and
all the witnesses (at least two of them) must sign a statutory affidavit (provided
by the Probate Court) after taking an oath before a notary. The maker and the
witnesses must sign the affidavit in each other's presence and in the presence of
the notary. The notary then places his or her seal and signature on the document,
and the affidavit is then attached to the will.
The 82nd Texas Legislature added a new way to make attested wills self-proving
after Sept. 1, 2011. The new procedure requires the maker and the witnesses to
sign only once. The prescribed statutory language of the self-proving affidavit is
incorporated into the text at the end of the will, so no separate affidavit needs
to be signed and attached.
Under this new procedure, the maker of the will must sign in the presence of the
witnesses and notary, the witnesses must sign in each other's presence and in the
presence of the maker and notary, and the notary must sign and affix his or her
seal in the presence of the maker and the witnesses.
The new procedure changes the process in another way. Before, the attested will
could be made self-proving at the time it was signed or anytime afterwards before
the maker died. Now, the attested will must be made self-proving at the time it is
signed. That is not to say that the former option no longer exists. It does.
However, the old option does not have the language of the self-proving affidavit
incorporated into the text. Under this new procedure, Texas residents have the
unique opportunity to streamline the probate process by making their wills
self-proving. A self-proving will avoids the necessity of having third-party
A self-proving will properly attested to can pass through probate in as little as
sixty days from the death of the maker of the will.
With this new method and the assistance of a qualified, experienced attorney such
as Robert Hohenberger and his staff, many of the headaches surrounding the sometimes
intimidating process of probating a will can be avoided.