Houston Probate Attorney

Whether or not probate is required depends on the facts and circumstances of each case.

Probate is generally required if the estate requires “administration.” Administration is a legal term meaning that the person had debts or owned assets that are not subject to a beneficiary or pay-on-death designation. A very common scenario that requires administration is when a person dies leaving a home or other property that needs to be transferred to the surviving spouse or children.

Probate is not required in every case. For instance, if the only assets are bank or retirement accounts with valid beneficiary or pay-on-death designations, probate may not be necessary. In such cases, the accounts can be often distributed to the beneficiaries simply by presenting the bank or institution with a death certificate and a valid ID.

Consult with an attorney to determine if you need to probate the estate.

One of the main functions of probate is to appoint a living person to administer the estate. This person is called the “personal representative” of the estate. Among other things, the personal representative’s job is to collect and secure assets, pay debts and claims, notify creditors, and distribute assets to the beneficiaries of the estate. Usually, the person filing the probate case will ask the Court to appoint them to be the personal representative for that estate. In cases where the is a will, the personal representative is usually the person named in the will as the executor. In cases without a will, the personal representative is called an “administrator” instead of an executor.

There are two types of personal representatives. They can be either “dependent” or “independent”:

• A dependent personal representative means they are subject to court approval for most actions, such as selling estate assets.
• An independent personal representative serves without court approval for most things.

Most estates involving a will usually have an independent personal representative because most wills specify they want the executor to serve without court supervision. In cases where this not a will, the administrator can serve independently if all the heirs agree. Thus, dependent administrations usually occur in cases where the will fails to specify an independent executor, or the heirs cannot agree on an administrator.

Probate and estate administration are two parts of the same process. If the deceased had a will, "probate” generally refers to the act of going to court and proving the will is valid. In cases where the person did not have a will, “probate” generally refers to going to court to prove the identity of the decedent’s surviving heirs at law and how much each of them is entitled to inherit. In both types of cases, probate includes the appointment of either an executor or administrator for the estate.

Estate administration generally refers to the actions the executor or administrator takes to settle the decedent’s estate after they are appointed by the court. This can include identifying creditors, paying debts, selling estate property, filing tax returns, forming trusts, distributing assets to heirs or beneficiaries, and a wide range of other tasks.

A qualified Texas probate lawyer can help with both probating the estate in court and assisting you with the duties of estate administration.

Every probate case is different. But in general, an uncontested case can take up to six months. Contested cases (such as where someone alleges the will is not valid or that someone does not count as a valid heir) can take longer. It also depends on whether administration is dependent or independent.

The typical steps in an uncontested probate case with independent administration are:

• Filing documents. All probate cases begin with filing an application to probate the estate. If there is a will, the signed original will needs to be delivered to the court along with the application. If there is no will, the applicant must identify all the potential heirs at law in the application.
• The hearing. After the application is filed, the court will typically schedule a hearing to open the estate. If there is a will, the judge will decide at the hearing whether the will is valid. If there is no will, the Court will issue a judgment declaring the heirs at law. The hearing is also when the Court appoints the personal representative.
• Oath and Bond After they are appointed, the personal representative must file a sworn oath to uphold their duties to the estate and beneficiaries. In some cases, the personal representative must also pay a bond. The bond is like an insurance policy and is designed to make sure there are funds available to pay damages if the personal representative does something that causes harm to the estate.
• Letters Testamentary. After filing the oath and paying the bond, the personal representative is entitled to receive “Letters Testamentary”. The Letters are just a document from the Court that the personal representative can present to third parties (such as banks or creditors) to show they have authority to represent the estate. If there is no will, the Letters are called “Letters of Administration” instead of Letters Testamentary.
• Notice to creditors. After being appointed, the personal representative must publish a notice to creditors in the local paper announcing that the estate has been opened and providing the personal representative’s name and contact information. Certain other creditors, such as mortgage lenders, must also receive notice in writing.
• Inventory, appraisement, and list of claims.  In most cases, the personal representative must file a document called an “Inventory, Appraisement, and List of Claims Owing to the Estate” within 90 days from the date of appointment. The Inventory and Appraisement must be filed publicly, and a copy delivered to all the beneficiaries or heirs at law. It must identify all assets the deceased owned at their death, the value of the assets, and identify any money or claims owed to the estate from third parties. There are certain cases where the personal representative is not required to publicly file the Inventory and Appraisement, such as when the deceased did not have any unpaid debts other than debts secured by real estate (such as a mortgage). In such cases, the personal representative is still required to deliver the inventory to distributees of the estate. But it does not have to be publicly filed.
• Payment of debts and claims. The personal representative must pay any valid debts of the deceased or claims owed by the estate. This can include medical bills, funeral costs, credit card bills, and so on. Estate debts are to be paid using estate funds only. If there are none available, the personal representative is typically authorized to sell estate assets to raise funds. Importantly, neither the personal representative nor the beneficiaries of the estate are personally liable for these amounts. But if the amount of debt exceeds cash on hand or the value of the estate assets, then the beneficiaries might not have anything left to inherit. Furthermore, the personal representative is only required to pay debts that they deem to be valid and owing. If the personal representative determines a debt is not valid, the creditor has the obligation to file a lawsuit to prove their entitlement to recovery.
• Distribution of the estate. After the inventory is filed and all debts and claims are paid, the personal representative may distribute the remaining assets to the beneficiaries and close the estate.

To learn more about the probate process in Texas, read “The Probate Process In Texas: A Step-By-Step Guide And FAQ”.

A probate attorney focuses their practice on estate administration and has experience with the probate process. A probate lawyer can help you:

• Review your loved one’s last will and testament
• Complete and file the necessary paperwork with the court
• Contact creditors and beneficiaries
• Get through hearings and court appearances
• Ease the duties of estate administration
• Handle contested wills and other disputes

You cannot settle the estate until all estate administration duties have been executed and any disputes resolved. The probate attorneys at Hendershot Cowart P.C. can provide effective, low-stress solutions at every phase of the probate process, so you can focus on mourning your loss and upholding your family’s legacy.

There is a difference between probate law and estate planning, which involves working with living clients to protect and preserve their legacy for the next generation. While some firms offer both estate planning and estate administration or probate services, the two practices are different. Our Houston probate attorneys focus specifically on helping clients through the probate process and estate administration.

In Harris, Fort Bend, Montgomery, and Galveston Counties, the answer is typically no.

If you are the executor of an estate, you must be represented by a licensed attorney. That’s because executors represent the deceased person’s heirs and creditors. While you can represent yourself in court, you cannot represent other people.

Montgomery County Probate Court, for example, has this policy: “People who represent themselves in court are called ‘pro se’ or ‘self-represented’ litigants. You are not required to have a lawyer to file papers or to participate in a case in court. You have a right to represent yourself. However, a pro se may not represent others. Under Texas law, only a licensed attorney may represent the interests of third-party individuals or entities, including guardianship wards and probate estates.”

Some courts may allow you to represent yourself under very limited circumstances. For example, if you are the sole beneficiary of the will and there are no debts against the estate (other than a mortgage), some courts may allow you to represent yourself in probating a will as a muniment of title or via the Small Estate Affidavit. These are specialized types of probate cases and are only available if certain conditions are met. Since there are no other heirs or creditors, you truly are representing yourself. However, each court has different rules, and some courts may not allow you to represent yourself in a probate matter under any conditions.

Probating an estate can be a complex endeavor with many legal requirements and deadlines that must be met. Not all estates require probate, and there may be ways to avoid probate altogether. And although the Texas probate laws are some of the most modern in the nation, it’s smart to get expert advice from an attorney to make sure you fully understand your options and obligations.

Most people who try to represent themselves mean well and are trying to avoid legal fees. But when you represent yourself, it is easy to make mistakes that can cost you time and money.

Full-service probate firms like Hendershot Cowart P.C. are especially helpful when you are dealing with a large, complex estate or potential conflicts among beneficiaries, creditors, or other interested parties. We can advise you of your rights and help guide the estate administration to an efficient and peaceful conclusion.

In Texas, the guardianship process is also overseen by the Probate Court making a probate attorney uniquely qualified to help you navigate guardianship or evaluate guardianship alternatives.

A probate attorney with guardianship experience like ours can:

• Guide you through the legal process of establishing and overseeing a guardianship
• Help with issues that arise during the guardianship, such as disputes over the ward's care or finances
• Assist in the termination of a guardianship
• Counsel you on less restrictive alternatives to guardianship such as powers of attorney, advance healthcare directives, or a special needs trust. Another option to guardianship is supported decision-making arrangement, which enables an adult with a disability or other impairment that affects their ability to make certain decisions to enter a beneficial legal agreement with their chosen supporter.
• Help you defend against challenges to terminate guardianships or dissolve a special needs trust or other guardianship alternative

Because establishing guardianship is a complex legal process, and because awarding control of person’s rights to another is a major decision, legal representation when seeking guardianship is crucial.

Serving Texas families in Harris, Fort Bend, Montgomery, and Galveston Counties, the probate attorneys at Hendershot Cowart P.C. can provide low-stress solutions at every phase of the probate process. We’ll assess your situation and create a clear, concise plan for settling the estate, so you can focus on mourning your loss and upholding your family’s legacy.

If you are facing the distribution of an estate or named as an executor or administrator for an estate, speak to a Houston probate attorney today. Call us at (713) 909-7323 or contact us online to schedule a consultation.

Why Should I Work With an Attorney?

Most personal representatives are also grieving relatives. When you work with a probate attorney, you’ll have an expert at your side to guide you through decisions and help carry the load, like:

• Reviewing your loved one’s last will and testament with heirs and beneficiaries.
• Completing and filing the necessary paperwork with the court.
• Contacting creditors and beneficiaries.
• Getting through hearings and court appearances.
• Easing the duties of estate administration.
• Handling will contests and other probate disputes.

Who Pays for a Probate Lawyer in Texas?

The deceased person’s estate usually pays for the attorney’s fees. The estate also pays for other costs associated with probate, like court filing fees. In most cases the personal representative will pay these fees and costs up front and can seek reimbursement from the estate after they are appointed by the court.

Why Can’t I Just Get Probate Paperwork off the Internet and File It Myself?

Some DIY websites claim to create probate documents for you or look over documents you create so you can represent yourself in court. This is often done by using templates or artificial intelligence (AI).

For simple estates, this type of generic approach might work, but most families aren’t simple. It’s common to have second or third marriages, and sometimes children from multiple marriages.

It’s also against the law for a non-lawyer to create or check over legal documents for you or give you legal advice. These services may be considered the practice of law, and it is illegal to practice law in Texas without a license from the Texas Supreme Court.

When these websites do offer access to an attorney, be aware that the lawyer and the website may be sharing fees, which is illegal. Or the website may simply be charging you a fee to refer you to an attorney in your community – someone you could find yourself, for free.

When you hire a lawyer directly, you get to decide who represents you. You can shop around to find someone you trust, at a fair rate, and feel confident that their only interest is representing you and your loved one’s estate.