What does Probate mean?
Probate is a legal process by which an individual alleges to a Court that an individual has passed away and requests the court to either approve the person’s will, or determine that the individual had no will and designate the person’s legal heirs.
In both cases, the individual seeking to probate an estate must establish that an individual has passed away. The person passing away is referred to as the “decedent”.
If the individual made a will prior to death, the person seeking the probate must establish that the will was in fact intended to be the will of the deceased individual, that it was executed in accordance with the appropriate laws; and that it has not been revoked or replaced. In addition, any “codicil” to the will needs to be established. A codicil is an additional documents designed to modify the will.
It is important to remember that a will has no legal significant until it is probated. For example, a bank will not release funds to an individual named in a will as the beneficiary of the funds until a Court has formally probated the will.
The term “intestate” is used to refer to a person that passes away without a will. In the case of a person that passes intestate, the Probate Court must determine each of the decedent’s legal heirs. The Court will also determine the particular amount of the estate that each heir is entitled to. The Texas Estates Code set out the exact rules for determining the heirship of a decedent. This are explained further in this article.
In addition to validating a will or determining heirship, the Probate Court determines the type of administration that will oversee the estate. The administration can be “Dependent”, which means that the Administrator will need to have approval from the Court for many actions related to the estate property. It can also be “Independent”, which means that the administrator can take many actions related to the the business of the estate “independent” of the Court.
When the administrator is named in a will, he or she is referred to as an Executor or Executrix.
What are Letters of Administration or Testamentary?
Letters of Administration are issued by the Court when an individual is appointed as an Administrator of an Estate. This is a certificate from the Court stating that the individual is the administrator and evidencing the fact that he is lawfully authorized to act on behalf of the estate.
When an individual is named in a will as the executor, these letters are called “Letters Testamentary.”
When is Probate required?
Probate is required when an individual leaves property which will require a showing of authority to transfer. For example, a bank will not release funds in an account in the name of deceased person without a showing of authority, such a Court Order or Letters Testamentary or Letters of Administration.
Likewise, real estate cannot be passed to individuals named in a will without the issuance of Letters Testamentary.
A probate proceeding may also be initiated by a creditor to an estate in order to collect against the assets of the estate or to foreclose on property.
Thank you for your interest in these articles. Please remember that these articles are designed to provide general legal information and may not apply to specific legal situations. Legal matters can be complicated by issues outside of the scope of our articles. Publishing these articles does not constitute legal advice on the part of Davis McCown, Attorney at Law. Neither review of any article, nor use of the information provided, constitutes an attorney/client relationship. It is recommended that all estate planning documents and decisions be discussed with a qualified attorney.