Q1: Can I probate a Will without an attorney?
Unfortunately, no. The Probate Courts do not allow individuals to appear on behalf of themselves. For all purposes in Probate Court, you must hire a lawyer.
Q2: I’ve been appointed as the Executor of a Will. What am I supposed to do?
A: The first things you should do are (1) find and secure the original Will; and (2) contact a probate attorney to assist you. Your probate attorney will explain exactly what will happen, and exactly what you need to do.
Q3: I am the Executor, and I have the original Will. Why does it need to be probated? Why can’t I just give away the property according to the Will’s terms?
A: If any of the property to be distributed is held under a “title” — such as a house, vehicle, bank account, or real estate — you need authority from the probate court to transfer that title to the new owner. By probating the Will, you as Executor obtain the authority (by receiving Letters Testamentary) to legally distribute the decedent’s property and to transfer ownership to the Will’s beneficiaries.
Q4: What if I want to contest a Will?
A: Contact a probate attorney immediately. If you want to contest a Will, you have a limited time in which to do so; and under the rules of Probate Court, you cannot proceed without the assistance of an attorney.
Q5: What if the Will doesn’t provide for an independent representation?
A: If the Will does not provide for an independent representation, or if the Will is otherwise not in order, the process is lengthier, more difficult, and significantly more expensive. That is why it is important to have a properly drawn-up Will.
Q6: What if there is no Will?
A: If there is no Will, and the decedent owned property worth less than $50,000, it is possible to file a “Small Estate Affidavit” to transfer the property. If the decedent owned property worth more than $50,000, the next of kin (or other close relative) must retain an attorney to have the Probate Court legally declare the names and shares of the decedent’s heirs.
Q7: All the deceased person owned was his or her home. Does the Will still need to be probated?
A: Yes. Otherwise, it is not possible to maintain the “chain of title” necessary to protect and transfer ownership in the house. However, an abbreviated and less expensive form of probate is available in Texas when a decedent owns only a home and no other significant property. The procedure is called a “Muniment of Title.” Be sure to tell your probate attorney at the initial consultation that you believe the only property in the estate is the decedent’s house.
Q8: I have looked everywhere for the original of the Will and can’t find it. What should I do?
A: It may be possible to probate a copy of the Will. Also, it may be that the decedent had a safety deposit box to which you do not have access. We can assist you in finding the box and obtaining a court order to gain access to it.