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THE INITIAL FILING

TEXAS PROBATE

Fred Hepner
Attorney at Law
Certified Public Accountant

This document is provided for educational purposes on and should not to be construed as the rendering of legal
advice. Readers of this document should consult a qualified attorney to discuss the application of any personal
legal issues and how they pertain to their own facts and circumstances. Tax and financial matters should be
discussed with a qualified financial and tax advisor.
WHEN IS PROBATE NECESSARY? FORMAL AND INFORMAL?

Probate law exists to create an orderly system for transferring a decedent’s property to his or her
creditors, taxing authorities and rightful heirs or Will beneficiaries. The Texas Probate Code
states that a decedent’s estate is probated, when “there exists a necessity for an administration
upon such estate.”1

Personal representatives of an estate become clients for various reasons. Often personal
representatives serve their own self-interest and desire probate representation to receive a portion
of the decedent’s estate. This self-interest must be balanced with their fiduciary duty to the
estate heirs or beneficiaries. Clients need a probate attorney for many reasons, sometimes to
protect the estate property from creditor actions or rogue family members snatching up the
decedent’s property. Decedents often die owing creditors, taxes, child support and liability
claims to third parties. The attorney is hired to provide legal representation to assist in returning
the estate process to normalcy.

No one is obligated by law to serve as a personal representative. A person named to serve in a


Will is not obligated to offer the Will for probate. A person in custody of the Will may be
ordered by the court to deliver the Will to the court. If the estate is insolvent, creditors have the
opportunity to open a probate of the decedent’s estate. A debt owed to a creditor is sufficient to
qualify the creditor as an interested party. Deciding to open a probate is often an economic one.
The benefits of opening the probate generally need to exceed the cost of the process.

Probate also provides a benefit by allowing the personal representative of the estate to resolve
the decedent’s debt issues. Debts may become a trap for the unwary, because heirs and
beneficiaries who take the decedent’s property, against the interests of the creditors, may be held
liable to creditors for attorney fees, court costs, actual damages and potential punitive damages.

FORMAL VS. INFORMAL?

The Texas Probate Code provides various methods for providing an orderly passing of the
decedent’s property to creditors, heirs and beneficiaries. The initial step in representing a
probate client is to ask, whether there are emergency issues that require immediate resolution.
Texas provides a temporary administration procedure for emergency situations. Most estates do
not need this temporary process and are able to wait for the more permanent procedures.

Temporary Administration - An elective process used to preserve or maintain the current status
of the estate, pending the appointment of a personal representative. If a county judge determines
the interest of the estate is best served by a temporary administration, then the administration
may be granted. The length of time for the temporary administration is set by the judge, but may
not exceed 180 days, by which time, the appointment must be made permanent.2 A permanent

1
Texas Probate Code sec. 82(h) and sec. 88 (d).
2
Tex. Prob. Code §131A(a).
appointment is made by the court’s written order.3 The procedure may be used to protect estate
assets, to deal with immediate emergencies, to satisfy an immediate need to collect estate assets,
to bring a lawsuit or defend a lawsuit, and protect the estate assets, pending a Will contest or
grant of letters of administration. Anyone not disqualified by law may file the verified
application.4 This tool may be used by creditors and tort claimants to show the immediate need
to preserve the estate, perhaps to protect estate assets from the heirs. Pending a Will contest, the
court may appoint a temporary administrator with limits of power necessary to address the
circumstances. The appointment may continue pending the resolution of the contest, or the
appointment of a full powered executor or administrator.5 The appointee must file with the clerk
of court a sworn final accounting listing all property of the estate collected, a return showing all
sales made, and a full exhibit and account of all his or her acts.6 Since a final accounting is
required, citation must be served on all the heirs or beneficiaries of the estate to show that a final
accounting was filed, stating the court, time and place where a hearing on the final accounting
will be heard. Notice must accompany a copy of the final accounting and be given to each heir
or beneficiary by certified mail, return receipt requested.7

Decedent left valid Will - independent administration requested in the Will - An independent
administration may be requested and granted under the terms of the decedent’s Will.8 The court
generally grants the independent administration, when a decedent requests an independent
administration in their Will. An independent administration created by a decedent’s Will may
remain open indefinitely. If the estate remains open, then the executor is empowered to act on
behalf of the estate in the future. Letters of testamentary are issued under this procedure.

Dependent administration with the Will annexed - This procedure is used when no person is
named in the Will as personal representative, or the named representative dies, resigns, refuses to
serve, or otherwise is removed. The procedure is a dependent administration with distributions
being made under the terms of the Will, not the laws of intestate succession. All of the
requirements of a dependent administration must be met, as well as the pertinent facts associated
with prove-up of a Will. The administration involves the court in the same capacity as any other
dependent administration. The discretion of the court may grant a court-created independent
administration.

Muniment of Title - The procedure is a less formal probate process for getting a Will admitted to
probate. The court issues an order that only admits the Will to probate for the purpose of
ordering a county clerk to record the Will in the public records. A Will admitted under
Muniment of Title does not appoint an independent executor or result in letters of testamentary.

Third parties deal directly with the person(s) named in the Will. Anyone owing money to the
estate and property in a third-party’s custody may be turned over to the person(s) named in the

3
Tex. Prob. Code §131A(j).
4
Tex. Prob. Code §131A(b).
5
Tex. Prob. Code §132.
6
Tex. Prob. Code §134.
7
Tex. Prob. Code §134(1).
8
Tex. Prob. Code §145.
Will. Third-parties may also purchase property directly from the person(s) named in the Will.
This procedure allows the beneficiaries of the Will to act as if they have already received title to
the property.9 The court may hear evidence and include a declaratory judgment in the order to
construe the Will or determine the persons entitled to receive property under the Will and the
share of the respective interests to the property. The judgment of the court is conclusive in any
suit by a person omitted from the judgment and for bona fide purchasers without actual notice of
the omitted party.10

Tex. Prob. Code §89A describes the statutory requirements that must be included in an
application to probate a Will using the Muniment of Title procedure. Tex. Prob. Code §89B
provides the statutory requirements for the prove-up in court. The court must find that there is
no need for an administration and no unpaid debts remain (excluding secured debt attached to
real property).11 This is a procedure that also may be used, when a Will that fails to name or
qualify a personal representative.

The filing of a particular affidavit is unique to the Muniment of Title process. The applicant
requesting the procedure must file a sworn affidavit before the 181st day, specifically stating that
the terms of the Will have been fulfilled, or accordingly state which specific terms of the Will
have not been fulfilled. The filing period may be extended. The applicant may also request a
waiver to file this sworn affidavit.12 In practice, the waiver request is certainly appropriate for a
sole beneficiary surviving spouse. Applicants are not guaranteed the grant of a waiver by the
court, especially where there are multiple beneficiaries are involved.

WHAT DOCUMENTS TO INCLUDE

Filing the Application - Probate of Will

Venue & Jurisdiction - File in the county of decedent’s residence, if decedent had a domicile or
fixed place of residence in Texas.13 The court may have jurisdiction and venue even though the
decedent had no domicile or fixed place in Texas. Tex. Prob. Code §6 provides guidance to aid
in analyzing probate in these situations. Determining proper jurisdiction is an important initial
step in determining the proper county to file the application to open a probate and allow
jurisdiction in the respective court.

Applicant - Make sure you have an applicant who qualifies to serve. Only the persons defined as
interested parties may file an application for probate. The applicant routinely is the same person
named in the Will to serve as the personal representative, but the applicant is not required to be
the same person. The applicant must be an interested party as defined by §3(r) of the probate
code. Essentially, the spouse, devisees, heirs, creditors, and persons with a property right, and
claims against the estate may file as the applicant. Nonresident applicants need a registered

9
Tex. Prob. Code §89C(c).
10
Tex. Prob. Code §89C(b).
11
Tex. Prob. Code §89C(a).
12
Tex. Prob. Code §89C(d).
13
Tex. Prob. Code §6(a).
agent to file a probate application and to serve as a personal representative.14

Additionally, there are instances were the person named in a Will is not suitable to serve as
personal representative. The code provides the details of persons disqualified by law and unable
to serve as personal representatives.15 For example, an incompetent person may not serve. Make
sure your applicant is not disqualified, before you file your application.

Practice Tip - During the prove-up at the initial hearing, the attorney should establish
that the personal representative is not disqualified by law from serving. The probate code
requires the court to establish that the personal representative is not disqualified from
serving. Going down the list of reasons for disqualification in court, asking the applicant
to answer each issue wastes time. Applicants often seem to be confused by the questions
in court, so my practice is to review the issues with the applicant at the initial office
consultation and additionally send a list to the applicant with a letter to remind them of
the hearing time and date. The letter includes a discussion about appropriate court attire
and repeats the reasons for disqualification. Most courts allow the attorney to simply ask
the applicant about reviewing the reasons for disqualification and whether the applicant is
disqualified for any of the reasons.

The Probate Application - The “application” is the initial document filed with the probate court.
The party filing the application is referred to as the applicant. The applicant must be an
“interested party” in the decedent’s estate. As stated previously, the term interested party is
defined in Tex. Prob. Code §6. The probate code specifically addresses who may be an
applicant, when an executor is or is not named in the Will.16 While the applicant must be an
interested party, the applicant does not necessarily need to be a person named to serve as
personal representative in the Will.17 The court looks to the Will for the order of named personal
representatives and observes the specific order of people or entities chosen to serve.18 There may
be instances where a personal representative named in the Will is unable or unwilling to serve. If
the person named in the Will is deceased, then the applicant only needs to testify that the person
is dead. In the instance where a person is alive, but unwilling to serve, prepare and file a
renunciation with the court.19 The renunciation must be signed and notarized by the person
unwilling to serve.

Practice Tip: A death certificate is useful for completing the application. The death
certificate contains information about the county of death, last county of residence, age of
decedent, date of death and other information included in the application. The
practitioner will save time asking the client for a copy of the certificate. The death
certificate is useful to the practitioner, but does not serve as evidence of the decedent’s
death. The applicant’s testimony establishes the proof of the decedent’s death. The death

14
Tex. Prob. Code §78(c).
15
Tex. Prob. Code §78.
16
Tex. Prob. Code §76.
17
Tex. Prob. Code §76.
18
Tex. Prob. Code §77.
19
Tex. Prob. Code §79.
certificate is not filed with the court.

There are many similarities in probate applications, but depending on the specific procedure
there are some differences in the details included in the application. The Texas probate code
provides statutory requirements for each type of application and many sections serve well as a
rudimentary checklist. For example, Tex. Prob. Code §81 provides a checklist for probate of a
Will to obtain letters of testamentary for an independent executor.

Practice Tip: The major legal publishers sell annotated versions of the Texas Probate
Code. Annotated code books include the West Texas Probate Code Annotated by Prof.
Stanley Johanson. O’Connor’s Probate Code Plus20 is another code source and contains
useful tables. Code sections in any source provide good checklists for reviewing the
completeness of your documents.

Standardized forms are available from various sources. The State Bar of Texas publishes
the Texas Probate System manual. This book contains many checklists for interviewing
clients and processing the case. Some county bar associations, e.g., the Dallas Bar
Association, compile and sell sample probate forms into a book of forms. This manual is
adjusted for Dallas County local rules. ProDocs sells a computerized version of probate
forms.

Filing the Application - Large counties generally have clerks assigned for probate filings, but
smaller counties do not always have specific clerks assigned to probate filings. The original Will
is filed with the application, so make sure you take copies of the Will with you for file stamping
and record keeping purposes. The file-stamped copies serve as your proof that the Will was filed
for probate, just in case the Will is lost by the clerks. Copies of Wills, that are not file-stamped,
can be problematic for prove-up purposes. Lack of the original Will creates a presumption that
the decedent revoked the Will prior to death. The evidence must be relatively strong to
overcome this presumption. Generally, filing the original Will, the application and paying the
proper filing fee opens the probate.

Practice Tip: Watch out for local rules that affect your return date. In Dallas County,
there is an unwritten local rule that if you file your application after 10:00 A.M. on
Thursday, then you must add a week to the “Monday next” for scheduling your hearing.
Ignoring this rule after filing your application and counting 10 days from the date of
filing, then advancing to the Monday next, will cause you to be a week early in
scheduling your hearing.

WHO MUST AND SHOULD BE NOTIFIED?

Notice Requirements Prior to the Initial Hearing - Probate of Will

Section 33 of the probate code provides the minium level of notice required to hold the initial

20
Published by Jones McClure Publishing
hearing for probate of a Will. This section states that the county clerk shall issue the necessary
citations, writs, and process in probate matters, not required to be issued by the personal
representative, order of the court, or otherwise not required by the code.21 Where the probate
code is silent on a procedure issue, then the Tex. Rules Civ. Proc. fills the gap.22

Probate of Will Produced to Court - Notice to probate a Will produced to the Court is relatively
straightforward. You must meet the general citation and notice rules of the probate code and
supplement this rule with any local rules of the court. Local rules are not always well
documented. For example, in Dallas County, the notice requirements to hold the initial hearing
to probate a Will produced to the court, track the minimum posting requirements found in the
probate code. The probate code requires a minimum period of ten days after filing, excluding the
day of posting.23 The clerk posts the required documents at the proper Courthouse location. The
citation and return of citation are filed in the probate case file and the hearing may be set
according to the specific courts’ specific days for routine prove-ups. The hearing generally may
be set after receiving the case number, provided upon filing, by calling the court.

Practice Note: Denton County has local rule 1.11, which significantly expands the notice
requirements of the probate code. Each court has discretion to add notice requirements
for probating a Will. Denton County requires all persons, who are named beneficiaries in
a Will, the surviving spouse (regardless of status of estate), all surviving issue (regardless
of status of estate) and all heirs of law with vested interests or positions in the estate of
the decedent (if died intestate). This local rule also provides specific documentation that
must be supplied to the court to show compliance with the rule prior to holding the
hearing.

Probate of Will Not Produced to Court - When the addresses of interested persons are known,
this class may be served by personal service. Nonresidents, interested persons, whose addresses
are unknown, and transient persons may be served by publication.

Probate of Will & Request for Court-Created Independent Administration - A court-created


independent administration involving a Will that does not request an independent administration,
requires all beneficiaries under the Will to agree to an independent administration.24 A
distributee may appear in court, or alternatively each distributee may waive citation and service,
agree to the independent administration, all of which may be supported by filing signed
waivers.25 The waiver is a good way to waive future citation and service for any additional
hearings. The application must also request the court to create the independent administration.

Notice Requirements After the Initial Hearing - Probate of Will

Notices Required by Tex. Prob. Code §128A - Section 128A applies to procedures involving

21
Tex. Prob. Code §33(b).
22
Tex. Prob. Code §33(d).
23
Tex. Prob. Code §33(f)(2).
24
Tex. Prob. Code §145(e).
25
Tex. Prob. Code §145(f).
probate of a decedent’s Will. Certain “beneficiaries” defined in Tex. Prob. Code §128A must
receive notice not later than the 60th day after the date of the order admitting a decedent’s Will to
probate. The notice is sent to beneficiaries with identities and addresses known to the personal
representative. If the personal representative learns of unknown beneficiaries after the sixty
days, then the representative must give notice as soon as possible.26 The list of beneficiaries
includes: a person, entity, state, governmental agencies of the state, charitable organization, or
trust entitled to receive real or personal property under the terms of the decedent’s Will.27

The code section provides additional exceptions as to who must receive this notice. If a
beneficiary appears in open court before the Will was admitted to probate, no subsequent notice
is required. Any beneficiary who receives a copy of the Will admitted to probate and who
waives the right to receive the notice complying with the specific criteria of 128A(d)(2), does not
need to receive the 128A notice. The detailed requirements of the notices are provided in
§128A(e).28 The notice must also be sent by certified mail, return receipt requested by the
personal representative to the beneficiaries.29

Section 128(A) also requires filing of a sworn affidavit with the court stating that personal
representative complied with the notice requirement. This affidavit must be filed with the
probate clerk, not later than 90 days following the order admitting the Will to probate.
Alternatively, a certificate signed by the personal representative’s attorney complies with the
filing requirement.30 Section 128A(g) details the information included in the notice filed with
the probate clerk, including the details about dealing with beneficiaries for which the personal
representative was not able to provide a beneficiary notice.

Practice Tip: Some practitioners file the sworn affidavit as a separate document with the
probate clerk, other practitioners include the affidavit or certificate required by 128A(g)
in the inventory required to be filed with the court. The inventory and personal
representative’s affidavit share the same 90-day filing deadline. Both the inventory and
the sworn affidavit must be notarized.

Notice to Third-Party Claimants Regarding Claims

An important aspect of probate is dealing with creditor claims. Failing to consider the interests
of creditors, may result in liability to the beneficiaries and heirs, who receive property from the
estate, if the creditors are not probably provided notice. The probate code works in a basic
manner with regard to creditors and claimants. First, the code provides permissive and
mandatory requirements for giving notice to creditors. Second, the probate code provides the
order for paying claims and allowances under Tex. Prob. Code §320. Third, the probate code
provides a classification system or detailed hierarchy for paying creditor claimants under Tex.
Prob Code §322. Fourth, the probate code provides a structure for accepting and rejecting

26
Tex. Prob. Code §128A(b).
27
Tex. Prob. Code §128A(a).
28
Tex. Prob. Code §128A(e).
29
Tex. Prob. Code §128A(f).
30
Tex. Prob. Code §128A(g).
claims.

Under Tex. Prob. Code §320, the issues related to administration costs, the decedent’s last
sickness and funeral expenses and creditors are addressed. Tex. Prob. Code §322 provides the
order or ranking of creditors into eight classifications and includes secured and unsecured
creditors, unpaid child support, unpaid state taxes, costs of Texas incarceration, Medicaid
benefits (subject to estate recovery), which all fall into this structured order of repayment. In
distributing assets, the order must be observed to avoid liability issues for the personal
representative and surety, if any. Obviously, if the decedent was incarcerated in Texas, leaves
child support in arrears, owes taxes or the estate is affected by any of the items listed in §322, the
practitioner must take additional steps to avoid missing notice or payment to the claimant.
Below is a discussion of more general types of notice in probate.

Texas Comptroller

The personal representative must give notice, within one month after receiving letters, to the
comptroller of public accounts, by certified or registered mail. This notice is required, if the
decedent remitted, or should have remitted taxes administered by the comptroller. This would
include sales, use and franchise taxes. This provision of the probate code is about allowing the
Texas Comptroller the opportunity to collect outstanding taxes from the estate of the decedent
and the contents of the notice.31

The prudent path is to ask the client whether the decedent ever operated a business during their
lifetime. Small business entrepreneurs frequently close failing businesses without filing final
state tax returns with the Comptroller. Liability may be incurred by the decedent simply from
the fact that the decedent served as a director or principal shareholder of a business entity. The
State of Texas takes the position that they are entitled to recover any unpaid sales taxes collected
for the life of a person and from the estate after their death. Discharging unpaid Texas sales
taxes is not discharged in bankruptcy and there is no statute of limitations against collection. If a
decedent was associated with a business, then notice to the state comptrollers office is
appropriate.

Practice Tip: Consider the prospect that every Texan is required to pay “use tax” on the
purchase of goods, where the seller does not collect sales tax at the source. With the
popularity of shopping on the internet, how many people have purchased out-of-state
goods and avoided payment of Texas sales tax. Every Texan, who engages in tax-free
purchases, subjects his or her estate to the use tax issues and this is a tax collectable by
the comptroller. The argument could be made that these decedents placed their estates in
a status where notice is required by their personal representative.

Published Notice - Required

Within one month of the personal representative receiving letters, published notice is required,
informing all persons having claims against the estate to present their claims within the time

31
Tex. Prob. Code §294(a).
prescribed by law. The notice must be published in “some paper” of the county where the letters
were issued.32 In practice, there is usually a paper in the county, where notices are customarily
published. In Dallas County, practitioners publish the Daily Commercial Record, a special legal
paper focused on legal filings and notices. The attorney provide the estate information to the
publisher, the publisher prints the required notice, then sends the practitioner a copy of the
published notice with the required publisher’s affidavit. The Commercial Record will even file a
copy of both the notice and publisher’s affidavit with the probate clerk, if the attorney requests
the publisher to do so. The probate code requires the filing of both the affidavit and a copy of
the notice with probate clerk. The filing must be done prior to the closing of the estate.33

The purpose of the published notice is to give notice that the probate was opened, provide the
contact information for the personal representative and to provide notice to third-parties about
where they should make their claims against that estate. The problem with this publishing
process is that it really does not inform the creditors of the estate directly. Therefore, the code
adds additional responsibilities to provide actual notice to certain creditors and permissive notice
to others. The discussion that follows provides information about additional permissive and
mandatory notices given to creditors under Tex. Prob. Code §294( c) and (d).

Unsecured Creditor Notice - Permissive

The personal representative may give notice by certified mail, return receipt requested to
unsecured creditors. The notice is permissive and the specific details for giving notice are found
in Tex. Prob. Code §294(d). The notice may provide that the creditor must present a claim
within four months after receipt of the notice, or the claim is barred. This notice may be sent at
any time before the estate is closed. Sending the notice does not prevent a creditor from making
a claim after the four-month period. Technically, the estate would pay valid claims, until the
estate is closed. This presents a slight issue in keeping independent administrations open
indefinitely, because the independent executor would be responsible for ascertaining the validity
of claims for an extended period of time.

Secured Creditor Notice - Required

Within two months after receiving letters, the personal representative must give notice to known
secured creditors. Unknown creditors must receive notice within a reasonable time after the
personal representative obtains actual knowledge of the unknown creditor’s existence. The
notices are sent certified mail, return receipt requested, to the last known post office address of
the secured creditor. A copy of each notice, the return receipt and an affidavit of the personal
representative must be filed with the clerk of the probate court that issued the letters.34 Failing to
give notice to secured creditors subjects an administrator and his or her sureties to liability for
damages of the creditor.35

32
Tex. Prob. Code §294(a).
33
Tex. Prob. Code §294(b).
34
Tex. Prob. Code §295(c).
35
Tex. Prob. Code §297.
Distinction Between Administrator & Independent Executor

Creditor issues and procedures for claims, rejection of claims and periods for filing suits are
different for dependent and independent administrations. The dependent administration
procedure implements stricter time periods and includes the court in the process of accepting or
rejecting claims. In a dependent administration, the estate is always closed. The creditor is
barred from collecting debt owed by the estate, upon closure. Failure to take action with respect
to their claim is the fault of the creditor.

Creditor issues are complex and for this reason both the practitioner and personal representative
must be vigilant in addressing creditor issues. For example, the practitioner representing a
dependent administrator needs to be vigilant for creditor claims filed with the clerk. A creditor is
permitted to file a claim directly with the administrator, or with the clerk. The administrator has
30 days to respond with a formal rejection to preserve the protections afforded by Tex. Prob.
Code §302.

Filing a timely rejection allows the administrator to object on form and substance. The creditor
is responsible for filing a claim in the format provided by the code, which also requires
signatures of the proper authority of an entity, and for attaching documents to validate the claim.
The administrator limits his or her personal liability by filing within the 30-day time limit.
Failing to file the proper rejection with the clerk, within the 30-day time limit, functions as a
rejection and exposes the administrator to personal liability. While the executor may file a
rejection against a creditor based on form, the rejection is not the strongest position to take for
rejecting claims. The creditor may file suit within 90 days of the rejection, provided the suit is
filed before the estate is closed. Rejection based on form may work against smaller creditors, but
larger creditors may be willing to file suit.

Practice Tip: Clerks fail to send notices and documents. Consider the issue of a clerk
failing to send notice of the creditor’s filing. There is no “clerk exception” that excuses
the personal representative for missing the 30-day period for rejection. The practitioner
may want to consider a system of monitoring the filing of creditor claims for dependent
administrations.

All claims must be approved by the court prior to payment by an administrator. The approval
process includes attorney fees. The practitioner needs to keep accurate time records. An
independent executor essentially pays claims without the court’s involvement or approval. With
an independent executor, claims are not filed with the court for approval. Claims are not
approved by the court. The independent executor loses the protection of the 90 days provided to
dependent administrators. The creditor must file a suit within the 90 days or the suit is barred in
a dependent administration. A creditor may sue the estate in an independent administration
anytime before the estate closes. The independent executor appears to have more exposure to
personal liability than a dependent administrator.

THE MASTER TIMELINE – DON'T MISS ANY CRUCIAL DUE DATES!

Decedent’s Date of Death - The decedent’s date of death is important to the choice of probate
procedure. A Will that is not offered for probate within four years of death must meet the
requirements of Tex. Prob. Code §128B and will be admitted under Muniment of Title.

Application Filed - filing the application is the first step in opening a probate. The original Will
and application are filed with the probate clerk.

Citation & Return - The clerk posts the notice for probate of a Will as an independent
administration and Muniment of Title. The practitioner is responsible for additional notice
requirements in a dependent administration. The hearing cannot be held before the return date.

Prepare Hearing Documents - In most routine probate procedures, the court will not have a
court reporter present. The attorney is required to bring the hearing documents to court,
including the order. The applicant’s testimony is recorded in a Proof of Death & Other Facts
document. The attorney also prepares this in advance of the hearing. The applicant signs the
document in open court, after giving his or her testimony. The probate code requires testimony
to be committed to writing.36 The Proof of Death & Other Facts is generally a combination of
§88 and Tex. Prob. Code §84 for a Will produced in court, §85 for Will not produced in court,
§89B for probate as Muniment of Title, and §88 for an intestate estate. The proof also serves as
a guideline for the questions asked of the applicant in open court. Prepare the proof in advance
of the hearing. If the Will is not self-proved, or other issues cause a variance from the routine
Will prove-up, then testimony of other witnesses must be anticipated, reduced to writing, and
signed in open court after witness testimony.

Set a Hearing - the hearing may be set as soon as the case is filed, based on the return dates.

Practice Tip: In Dallas County, there are three probate courts. For routine prove-ups, two
of the courts will have the probate case file in the courtroom for the hearing. These courts
require hearings to be set by appointment. Probate Court No. 2 requires the attorney to
obtain the file from the clerk prior to the hearing and hand carry the file into the court.
This court uses a different process for routine Will prove-ups. The applicant and attorney
appear on certain days, the attorney asks the coordinator to place the case on a first come,
first served list.

Conduct the Hearing - The practitioner also needs to prepare an order for the judge to sign.
Take extra copies of all documents to the hearing, after the conclusion of the hearing, the
attorney needs to obtain conformed copies of the documents for their own case file and the
applicant. Following the hearing, the attorney and client will walk down to the probate clerk to
sign an Executor or Administrator Oath (also prepared by the attorney in advance). The
respective executor or administrator is now officially authorized to purchase the requisite number
of letters of testamentary or administration and begin administration of the estate.

Additional Time Factors to Consider:

36
Tex. Prob. Code §87.
Within First 30 Days After Letters Issued:

1. Prepare 128A notices for signature of the executor and mailing to Will beneficiaries
2. Publish creditor claims notice in newspaper - must file copy within 30 days, with the
publisher affidavit
3. Notice requirement for Texas comptroller
4. Provide client with list of information to gather for preparation of inventory
5. Determine whether IRS Form SS-4 is required (note discussion regarding taxes)
6. Determine whether IRS Form SS-56 is required
7. Obtain value of all assets on date of decedent’s death for court inventory
8. Assess potential for estate to be a taxable estate

Within First 60 Days After Letters Issued:

1. Required notice to secured creditors


2. Permissive notice to unsecured creditors

Within First 90 Days After Letters Issued:

1. File the Inventory, Appraisement & List of Claims - send with an order
2. File the affidavit that 128A notice sent beneficiaries
3. File affidavit of personal representative and copies of notices sent to secured creditors (case
law holds that must be filed be closing the estate)

At 6 months after Decedent’s Date of Death:


1. Obtain valuation of estate assets for a taxable estate - alternate valuation date

Within 9 months after letters issued:

1. Prepare for signature, any disclaimers appropriate to the estate.

Within 9 months after Decedent’s death:

1. If the estate is subject to estate tax, file Form 706 (or 6 month extension of time to file).

Other Fact Specific Issues After Decedent’s Death:

1. Determine whether decedent needs to file a final income tax return, or advise client to seek
competent counsel regarding decedent’s final income tax obligations.
2. Determine whether estate income tax return (Form 1041) needs to be filed, or advise client to
seek competent counsel regarding estate income taxes ($600 of income earned by the estate,
essentially from the day of decedent’s death, requires the filing an estate income tax return)
3. Determine whether any trust income tax returns must be filed for any inter vivos trust, grantor
trust of decedent, or trust created under the Will.
4. An administrator must file a rejection within 30 days after the personal representative receives
a claim or the claim is filed with the clerk.

12 months from date of qualification of administrator:

1. File an annual accounting - if a dependent administration.

Close of Administration:
1. File final accounting
2. Provide notice to heirs or beneficiaries regarding filing of final accounting

INTRA-OFFICE COMMUNICATION – SETTING UP THE FILE SO THAT YOUR


STAFF CAN PROPERLY ACT ON IT

Each attorneys personal preferences affect the manner in which he or she sets up the file. Here
are some guidelines to consider in setting up and processing probate cases.

1. It is imperative to guard against conflicts of interest. An attorney should strive to maintain


the attorney/client relationship with the personal representative only, not the heirs or
beneficiaries. Avoid the implication that the firm represents the beneficiaries and/or heirs. The
personal representative probably knows about family members and individuals who have the
potential to create conflict, so explore this issue at the initial meeting. Family conflicts often
begin at the decedent’s funeral. Maintain a conflicts log to prevent communication with
opposing parties, beneficiaries, heirs and similar parties. Keep clear records for your current and
past probate cases. It is not unusual for a disgruntled heir or beneficiary to call several years
after the estate is closed.

2. The firm’s filing system must safeguard the original Will that will be delivered to the
attorney’s custody prior to filing the Will with the probate clerk. Probating an original Will is a
lot easier than trying to probate a lost will.

3. The firm’s client file should document any special instructions that the attorney needs to relay
to the legal assistants to enable efficient scheduling of hearings. Probate courts usually set
specific days aside for scheduling routine Will prove-up hearings. On these days, no court
reporter is available and the judges are only concerned about processing routine prove-ups. Any
probate case that varies from the routine Will prove-up may result in the prove-up not being
heard by the court that day. If the legal assistant informs the docket coordinator of any special
issues, the coordinator will usually advise the legal assistant that a special setting is necessary.

4. Prepare a checklist of filing deadlines and due dates for filings. The file should record when
documents are filed and notices are provided to the client. Probate cases are very date specific
and missing certain requirements by one day can result in significant liability for the personal
representative. A checklist should include specific dates to remind clients of their task
requirements. Clients rely on the attorney to inform and remind them of important deadlines.
Usually, a reminder about the requirement to file the inventory, sending creditors’ notices and
the 128A notices are necessary. Dependent administrators seem to always forget the need to file
the annual and final accountings. Inaction and missing deadlines may result in a show cause
hearing and subsequent removal of the personal representative.

5. Clients generally need plain, English information about the requirements for the inventory
and accountings. Consider preparing a set of instructions that is given to the client to help the
personal representative gather the necessary information. A considerable amount of information
is needed to prepare the inventory, so get the client working on the needed information early.
6. Establish a policy for payment and publishing the required creditor notice to ensure
compliance with Tex. Prob. Code §294(b). A copy of the published notice and publisher’s
affidavit must be filed with the court. The filing needs to be documented in the case file and a
copy should be provided to the personal representative.

7. Document the required notices sent to secured creditors and any permissive notices sent to
unsecured creditors. Make sure the file addresses the filing requirement related to secured
creditors. Document any action taken by the executor or administrator rejecting a creditor claim.
Rejection of a claim increases the likelihood that the creditor may file a suit on the claim. In a
dependent administration, the creditor must file within the 90-day period or the claim is barred.
The creditor may file at anytime and without notice, where the estate is an independent
administration and still open.

8. Essentially, the file needs to monitor the progress of the case, ensure that deadlines are met,
occasionally re-stimulate client interest in the case, record time expended on the case, and
progress the case to the proper conclusion.

DEALING WITH INTESTACY

Waiver of Citation - Any legally competent interested person may appear in person and
essentially submit to the jurisdiction of the court. An interested party may also waive notice of a
hearing in writing.37 Waivers are very useful tools to avoid notice issues for any initial or
subsequent hearing. Dependent administrations require a higher level of notice to parties and
heirs to allow the court to hold hearings and close the estate.

Dependent administration - This is the default probate administration procedure, where the
decedent dies intestate. Letters of administration are issued to the administrator of the estate. A
dependent administration is only appropriate where a necessity exists for an administration. The
court manages and approves all aspects of the probate actions, generally requires the posting of
bond, and both annual and final accountings are necessary. This procedure may be used if no
executor is named in the decedent’s Will, or the named executor fails to qualify within 20 days
after probate of the Will. The procedure may also be used, when the named executor does not
present the Will for probate within thirty days of the decedent’s death. The named executor may
show good cause for not presenting the Will within the 30-day period and prevent the dependent
administration.38

37
Tex. Prob. Code §35.
38
Tex. Prob. Code §178.
Practical Tip: There is no legal requirement for a family to publish a decedent’s obituary
in Texas. However, publishing an obituary is a profit item for the funeral home and
families generally do feel compelled to publish the obituary. The obituary can be a useful
tool for the practitioner. Reviewing the notice sometimes reveal interesting facts. On
more than one occasion, this practitioner has found names of brothers and sisters named
in the obituary, but the same relatives seem to become irrelevant to family members,
when its time to file for probate. A quick review of the decedent’s obituary may reveal
missing heirs requiring notice to conduct hearings. The practitioner might also be able to
consider potential contest issues.

Practice Tip: Make sure your applicant can qualify for a bond before filing the
application. Apply for preapproval of the applicant’s bond, prior to filing your
application with the court. You can request the bonding company to pre-approve the
applicant’s bond. Usually this simply involves submitting the application to the bonding
company for preapproval. If you skip this step, the applicant may be appointed by the
court, but unable to qualify for the bond. Simple factors, such as the applicant’s own
credit issues, make qualification for a bond difficult. The court will probably remove the
administrator without a workable solution to the bonding issue. Probate courts generally
do not waive bond in dependent administrations, or court-created independent
administrations.

Representing clients in a dependent administration requires the attorney to diligently adhere to


deadlines and filing requirements with the court. Most aspects of the administration require the
approval of the court before taking actions. For example, an attorney needs approval of his fee
and approval for the administrator to pay for the attorney’s services. Filing inventories, annual
accountings and final accountings are required. Failure to meet the required filing deadlines may
result in removal of the administrator for cause. Guard against the client, who seek the
appointment as the administrator, gains access to the decedent’s financial accounts, and then
seems to forget about staying focused on meeting their duties to the court and heirs.

Determination of Heirship - A determination of heirship proceeding determines the legal heirs of


a decedent, their respective shares and interests under intestate succession. This type of
procedure is appropriate, when there is no need for an administration.39 The procedure, if filed
within four years of the decedent’s death, may also allow admission of evidence and request the
court to make a determination that no need exists for an administration of the estate.40 The
proceeding clears title to property by showing that title passed from the decedent to the heirs.

What happens if an heir is not included in the determination of heirship? The excluded heir may
not proceed against a bona fide purchaser, but may at any time within four years of the judgment,
or at anytime where there is proof of actual fraud, seek his just share of the value of the
decedent’s property.41

39
Tex. Prob. Code §48(a).
40
Tex. Prob. Code §48(b).
41
Tex. Prob. Code §55(a) and (b).
This procedure provides results similar to the muniment of title procedure associated with
probate of a Will. Heirs are entitled to enforce their right to payment, delivery, or transfer by
suit.42 A certified copy of the order may be filed in the county records where real estate is
located.43
The determination of heirship proceeding is also important to dependent administrations. A
determination of heirship is generally required to close a dependent administration proceeding by
most statutory probate courts. A change was proposed during the past legislative session to
require a determination of heirship to close court-created independent administrations. On
occasion the court may allow substitution of the filing of an affidavit of heirship, in lieu of a
determination of heirship proceeding, for smaller estates. You would need to check with your
court.

Order of No Administration - An application may be filed for an order of no administration. If


the value of the entire estate, not including homestead and exempt property, does not exceed the
family allowance applicable to the surviving spouse and minor children. The proceeding may be
filed if no administration is necessary to establish the family allowance and for entry of an order
of no necessity for an administration.44 The court may hear and rule on the application without
notice to third parties or require that certain notice requirements to be met.45 The court needs to
find that the expenses of last illness, funeral charges, and expenses of the proceeding have been
paid or secured.46 The order essentially functions to allow the gathering of assets, provide
authority to transfer assets, and other functions similar to the determination of heirship and
muniment of title procedures.

Independent administration (Court Created) - The court has the discretion to create an
independent administration, with the agreement of all distributees of the estate. The agreement
can be added to the waiver. The court may also create an independent administration, when the
decedent dies without a Will and the default dependent administration applies. The above-
mentioned waiver may also include a request for the court to waive the bond requirement.
Evidence is required to show that all parties agree to the independent administration and the total
number of distributees were given notice.

Practice Tip: While the court may create and grant an independent administration, the
court may not waive bond. A bond requirement will require closing this type of
independent administration for a practical reason. Every year that the estate remains
open, the personal representative will need to pay a new annual bond premium to the
surety.

Small Estate Affidavit47 - This is a less formal procedure used only for intestate estates. This
procedure may be useful for transferring bank accounts, personal property and title to the

42
Tex. Prob. Code §55(c).
43
Tex. Prob. Code §56.
44
Tex. Prob. Code §139.
45
Tex. Prob. Code §140.
46
Ibid.
47
Tex. Prob. Code §137 - provides for collection of a small estates by affidavit
homestead of the decedent. The estate must be relatively small, less than $50,000. In calculating
the $50,000 limit, the statute allows for the exclusion of certain types of property.

For example, the statute provides that a $100,000 homestead is not included in the calculation of
the property limits. It is important to understand how your court determines the definition of
exempt property. For example, Dallas County courts do not view the decedent’s homestead as
exempt property from the perspective of the decedent. The collection of a small estate by
affidavit only transfers title to the decedent’s homestead, not other real property owned by the
decedent. To transfer title to the homestead, the affidavit must be recorded in the deed records of
the county where the homestead is located.48

Practice Tip: Out-of-state-based banks often are unfamiliar with this procedure.
Collection of small estates by affidavit is rather unique to Texas. An order is issued by
the court and the practitioner should probably warn the client that they may experience
some difficulty using the affidavit. The problem can usually be resolved with a little
pressure and explanation from the practitioner.

Affidavits of Heirship - Section 52 of the probate code provides a method of clearing title to real
property in Texas. Guidance for preparing the affidavit is found in Tex. Prob. Code §52A. This
tool is often used by title companies to clear title to real property held by a decedent, who
without the probate of a will. The procedure is useful for clearing old matters of past family
members that create title issues in your current clients probate case.

The procedure provides prima facie evidence of the decedent’s family history, genealogy, marital
status, or identity of the heirs. The affidavit becomes prima facie evidence after five years
documenting a decedent’s family, marital and similar history in the county clerk’s records.49 The
proponent using the affidavit has the burden to prove the facts stated in the affidavit during an
initial period of filing, if contested. If five years pass, then the burden of opposing the affidavit
facts shifts to the opposing party to prove the facts are not true.

This document is provided for educational purposes on and should not to be construed as the
rendering of legal advice. Readers of this document should consult a qualified attorney to
discuss the application of any personal legal issues and how they pertain to their own facts
and circumstances. Tax and financial matters should be discussed with a qualified financial
and tax advisor.

48
Tex. Prob. Code §137(b) & (c).
49
Tex. Prob. Code §52.