Probate Courts

 Estate Administration - Frequently Asked Questions

Does an attorney ad litem have to be appointed in all heirship proceedings?

Yes, attorney ad litems must be appointed in all heirship proceedings.  For more information reference Section 53 in the Texas Probate Code and the Texas Rules of Civil Procedure.

How many witnesses are needed in a proceeding to declare heirs?

 Two witnesses are required.  According to Section 53 in the Texas Probate Code, the court in its discretion may require all or any part of the evidence admitted in a proceeding to declare heirs to be reduced to writing, subscribed and sworn to by the witnesses, filed in the cause, and recorded in the minutes of the court.  Bexar County Probate Courts interpret section 53 to require more than one witness.

Notice to creditors, is that a new law?

No, notice to creditors is not a new requirement.  Section 294 of the Texas Probate Code states, in relevant part, that within two months after receiving letters, the personal representative of an estate shall give notice of the issuance of such letters to each and every person known to the personal representative to have a claim for money against the estate of a decedent that is secured by real or personal property of the estate.  For more information on presentment and payment of claims, reference section 294 of the Texas Probate Code.

Can I take 5% of all income and 5% of all disbursements on administrations?

Section 241 of the Texas Probate Code, states in pertinent part, that all executors, administrators and temporary administrators shall be entitled to receive a commission of five percent on all sums they may actually receive in case, and the same percent on all sums they may actually pay out in cash, in the administration of the estate on a finding by the court that the executor or administrator has taken care of and managed the estate in compliance with the standards of this code.  A commission is not allowed on money disbursed to the executor/administrator by the executor/administrator.  However, unlike guardianships, you can take a commission on sales.

 What do I put in an inventory in the administration of a decedent's estate?

Section 251 of the Texas Probate Code, requires that inventories should include all real property of the estate located in the State of Texas and all personal property wherever situated.  The inventory needs to specify what portion of the property, if any, is separate or community property.  If the property is owned in common with others, state the interest owned by the estate, together with the names, ownership interest and relationship to the decedent, if known, of the co-owners.  Give legal descriptions of real property.  Divide personal property into various categories such as: cash on hand, cash on deposit, stocks and bonds, and automobiles. Provide the name of the fiduciary institution and account number for financial accounts. Vehicles should be described with their model, year, make and VIN number. Household items and personal effects can be grouped together under a heading entitled "Other Miscellaneous Items".  List the claims that are owed to the decedent.

What do I  leave out of an inventory in the administration of a decedent's estate?

Do not include non probate assets and claims owed by the decedent.  In addition, details of every single household item or personal effect are not needed.  It is better to group these items together under a heading entitled "Other Miscellaneous Items".

Does the proof of death and other facts need to be done in open court?

Yes, proof required for probate and issuance of letters testamentary or of administration must be done in open court. Although Section 88 of the Texas Probate Code does not specifically state that the proof of death needs to be done in open court, Section 87 states in relevant part that all testimony taken in open court upon the hearing of an application to probate a will shall be committed to writing at the time it is taken ,and subscribed, and sworn to in open court by the witness or witnesses, and filed by the clerk.

Can an interested witness prove an attested will?

No, two disinterested witnesses are needed to attest to a testator's signature or handwriting. According to Section 84 b2 of the Texas Probate Code, the testimony or affidavit of two witnesses to the signature or handwriting of the testator is required to be taken in open court or by deposition.  Bexar County Probate Courts require that these two witnesses be disinterested.

Is a death certificate sufficient for the proof of death in a proceeding for the appointment for a personal representative?

No, the applicant must comply with the requirements outlined in Section 88 of the Texas Probate Code.  In order to probate a self proved will or obtain the issuance of letters testamentary or of administration, an applicant must prove to the satisfaction of the court the following: that the person is dead, the court has jurisdiction and venue over the estate, citation has been properly served and returned, and the applicant is not disqualified and is entitled to letters testamentary or of administration. If the will is not self proved, the applicant must prove that the will was executed with the required formalities, that the will was not revoked, and that the testator was eighteen years of age or married or member of the armed services and was of sound mind at the time of the execution of the will.

Does a divorce or annullment void a bequest?

Yes, a divorce or annullment voids a bequest. If the will was made prior to the divorce, it must be read as if the now former spouse did not survive the testator.  Additionally, a divorce or annullment voids any appointment of the former spouse to any fiduciary capacity (i.e. executor, trustee) under the will.  For more information refer to Section 69 of the Texas Probate Code.

Can I probate a copy of a will?

Yes, you can probate a copy of the will but you must comply with the Code's requirements.  An Application for Letters Testamentary for Probate of a Written Will Not Produced in Court must comply with Section 81(b).  The application must contain the reason why the original will cannot be produced, the contents of the will as far as known, the date of the will and the executor if any, and general information on each devisee and heir.  The clerk shall issue a citation to all parties interested in the estate (see Section 128b).  The copy of the will must be proved in the same manner as for an attested written will or a holographic will (see Section 85 & 84b).

Can I file an affidavit of heirship to probate a will?

No, an affidavit of heirship cannot substitute a probate proceeding. According to Section 94 of the Texas Probate Code, the only way a will can have force and effect is for it to be admitted to probate under the probate process.  An affidavit of heirship only serves to establish the identity of the decedent's heirs.  It is not evidence of the decedent's devisees (see section 52 of the Texas Probate Code).

The testator's witnesses signed their names under a heading entitled "subscribed and acknowledged by", is that sufficient to make the will self proved?

No, a will must meet certain requirements before it can be considered self proved.  In order for a will to be self proved, an affidavit that is either attached or annexed to the will has to be both subscribed and sworn to by the witnesses. The testator must also sign the affidavit but it is not required that the testator swear to it.  Additionally, the contents of the affidavit must substantially comply with the language in Section 59 of the Texas Probate Code.

Do ad litems in heirship proceedings need to be certified?

No, only ad litems in guardianship proceedings need to be certified.