is the legal process of transferring property
following a person's death. You'll receive the
letters of testamentary or letters of administration
that you need in order to recover estate assets.
It also helps you transfer title on real property.
Probating customs and laws have changed over time,
the purpose of probating has remained much the same:
an individual formalizes their intentions as to the
transfer of their property at the time of their death
(typically through a Will), their property is collected,
certain debts are paid from the estate and the
property is distributed accordingly.
of a Will = $2,000
there is a self proving affidavit or available
witnesses naming executor costs.
This will give you letters for testamentary you need for real estate, banks,
Probate Without a Will = Call
as Muniment of Title = $1,500
Estate Affidavit = $1,200
if there is less than $50,000 in assets
besides the homestead.
Estate or Probating Real Estate
This will give you Letters of Administration
Administration = $3,500
plus court costs and
ad litem fees only if all the
potential heirs are in agreement on how to proceed
Administration - $7,500
costs and ad litem fees
Executing A Will To Achieve Desired Property Distribution
What A Will Can Do
testator is a person who leaves a will in force
at his or her death. A will is a
which states how the testator's property is
to be distributed at death. A valid will
many of the problems that may arise from dying
without a will and allows a person to leave
property to the persons he or she desires.
to naming the recipients of the testator's
property, the will also designates the
will manage the property and care for minor
children. In larger estates, the will often
that minimize estate taxes.
A will can also set up a trust, a method by which
property is held by one party (the trustee) for
the benefit of another (the beneficiary). To establish
a trust, the testator transfers property, with
the specific intent to create a trust, to the trustee
who manages and administers the property for the
benefit of named beneficiaries. A testamentary
trust arises under a will and becomes effective
when the testator dies. A trust is an effective
way of managing property for the benefit of minor
or incapacitated persons or persons who are incapable
of managing their own financial affairs. A trust
also is useful to prevent a spendthrift child from
immediately spending his or her inheritance by
preserving the funds for the child's education
or other important needs. Further, a trust may
be used to protect the child's inheritance from
the claims of his or her creditors because property
placed in a trust generally may not be reached
by a beneficiary's creditors until it is distributed
to the beneficiary. There also are many other legitimate
reasons to create a trust in a will.
Requirements for Execution
For a will to accomplish any or all of these results,
it must have been properly signed. Texas recognizes
three kinds of wills:
handwritten (holographic); and
To execute any of these wills, the testator must
meet the following requirements:
be at least 18 years of age, married, or serving
in the armed forces;
be of sound mind at the time of execution;
not be unduly or fraudulently induced (forced or
deceived) to make the will; and
have testamentary intent (present intent to bequeath
property at death).
Additional requirements as noted below must be
met for each type of will.
An oral will applies only to personal property.
Gifts of land and improvements on it cannot be
made through an oral will, since transfers of title
to real property must be in writing. Further, an
oral will is valid only if made by the decedent
in his or her last illness and at home, except
where he or she is taken sick away from home and
dies before returning home.
If the value of the personal property is more
than $30, there must be three or more credible
witnesses to the oral will. In addition, an oral
will cannot be probated (proved in court) more
than six months after death, unless the testimony
or substance of it was reduced to writing within
six days after making the will.
If these requirements of an oral will are not
met, the decedent's property passes according to
the laws of intestacy. From the information above,
you can see that the law greatly restricts the
use of an oral will. Therefore, such a will should
not be relied upon for disposing of property.
Handwritten (Holographic) Will
Under the Texas Probate Code, a valid handwritten
will must be wholly in the handwriting of the
testator and signed by him or her. It does not
need to be witnessed and can be written on anything,
including stationery. Typewritten words may not
be incorporated into the will. The wording must
reflect a present intent to dispose of property
at death. The words, "This is my last will
and testament," generally are sufficient
to show testamentary intent.
While executing a handwritten will sounds easy
enough, problems can arise from its interpretation,
especially when written by a lay person. If the
instrument does not dispose of all of the decedent's
property, the undisposed property will pass according
to the statutes regarding intestate distribution.
If the handwritten will disposes of more property
than the testator owns, complications may arise.
Remember, a spouse has only one-half of the community
property to give to anyone because the other spouse
owns the remaining half. If a will attempts to
give all the community property to one or more
persons, the surviving spouse is placed in the
awkward position of having either to accept whatever
bequests are made to him or her in the will or
to renounce the entire will and instead claim his
or her one-half community share.
If the bequests in a handwritten will are not
written in clear language, then it may be necessary
for the court to construe the meaning of ambiguous
terms. As a general rule, the less clear the language
and the more property and heirs involved, the more
likely the will may be contested in court. Contesting
a will is usually a very lengthy and costly process
and may result in defeating the testator's intent.
Further, if the handwritten will does not contain
the proper language allowing the executor to serve
without court supervision and waiving bond, the
executor may be required to obtain court approval
of many actions and to post an executor's bond.
This causes unnecessary delays and expenses in
administering the estate.
For these reasons, although a handwritten will
is better than an oral will, the best approach
is to have an attorney prepare a typewritten (or
Typewritten (Formal) Will
A typewritten will sometimes is referred to as
a formal will. A well-drafted typewritten will
is more apt to carry out the decedent's intent.
Although a typewritten will may be prepared by
a lay person, an experienced attorney should
draft the will.
For a typewritten will to be valid, it must meet
be signed by the testator or another person at
his or her direction and in his or her presence;
be attested by two credible witnesses above the
age of 14; and
be signed by the witnesses in the presence of the
A beneficiary under a typewritten will should
not serve as a witness to the execution of the
will because this may preclude the beneficiary
from receiving any property under the will.
Executing a will that stands up in court is only
one aspect of "getting your affairs in order." After
execution, the original document should be safeguarded
so that it is not lost, destroyed, or mutilated,
which might result in complications in probate
court as to the proof of its contents. Further,
a will should be updated when there are changes
in the testator's heirs, property, or marital status.
This can be accomplished by executing a proper
amendment (a codicil) to modify the existing will
or by canceling (revoking) the existing will and
then executing a new one. It is not advisable to
update a will by writing or making changes on it
because such revisions may be totally ineffective.
Be aware that a will can also be canceled to some
extent if the testator is divorced after making
the will. In such a case, gifts to the ex-spouse
in the will, as well as appointments of the ex-spouse
as executor or trustee, are void and will not be
recognized. Similarly, an ex-spouse who was designated
during marriage as a beneficiary under the decedent's
life insurance policies generally is not entitled
to the life insurance proceeds upon the decedent's
death. A temporary order issued by a divorce court
prohibiting a party to a pending divorce case from
changing his or her will until the divorce is final
The subsequent marriage of a single testator will
not cancel his or her will. If a person who signs
a will before marriage wishes to give all or any
portion of his or her property to the new spouse,
he or she should sign a new will. Otherwise, the
property will pass according to the provisions
contained in the will that was signed before marriage,
and the new spouse will receive no portion of the
deceased spouse's property.