TexasCHLforum.com

JDstar's explanation is excellent. I'm going to expand on it a little bit.

The term "probate" comes from a Latin word meaning "to prove." "Probating" a Will essentially means proving to the court that the purported Will is actually the deceased person's last Will. The court will have to determine several important issues involving the Will and the decedent. Is the decedent actually deceased? Is the document which purports to be a Will actually intended as a Will, and if so, is it a valid Will under Texas law? In other words, does it meet the required formalities (signed and witnessed, or wholly in the decedent's handwriting)? Was the document the last Will the decedent signed, or did he later sign a new Will? Did he ever revoke the Will, or amend the Will with a "codicil?" Does the Will name an executor? Is the person named as executor legally qualified to serve? These are a few of the routine issues which are addressed. and one or more witnesses will have to provide this information to the court.

That is why you cannot just take the Will and a death certificate into a bank, show it to the banker, and then collect the money in the decedent's account. The bank does not know whether it is a valid Will, or the decedent's last Will, or that the executor is entitled to serve, etc., until the probate court makes those determinations. A copy of Letters Testamentary is essentially evidence that the court has made those determinations and that the person named as executor is entitled to serve as executor. That is why banks and other third parties almost always request Letters Testamentary.

In Texas, if the deceased person had no unpaid debts, then it may be possible to probate the Will as a "Muniment of Title," in which case no executor may be needed to collect the assets, pay the decedent's debts, and distribute the assets to the proper persons. Instead of presenting Letters Testamentary, one would present certified copies of the Will and the Order Admitting the Will to Probate to the bank or other third party. But it is more challenging for the bank, because it has to review the Will and figure out who is entitled to funds on deposit.

Most probate courts in Texas will require the involvement of an attorney if the person applying for probate is seeking to be appointed as executor and to receive Letters Testamentary. In the case where there are no debts and the person applying for probate as a muniment of title is the only beneficiary of under the Will, it may be possible to proceed without hiring a lawyer.

It may be possible to completely avoid the probate process by using survivorship accounts, beneficiary designations, transfer on death deeds, and similar techniques, but if persons don't die in the expected order, or if there are debts which need to be paid, these may not be the best way to proceed. It is also possible to use a fully funded revocable living trust (sometimes referred to as a "living trust" or "revocable trust") as a substitute for a Will and thereby avoid the probate process entirely.

The most important takeaways: If you plan in advance, you may be able to make it easier for your family. In some cases, good planning may involve using a Will to dispose of your property. If your planning involves using a Will, the probate process will likely be necessary but important part of the process.

Don T.

philip964 wrote: ↑Fri Aug 09, 2024 10:27 am

Don T wrote: ↑Thu Aug 08, 2024 7:22 pm

philip964 wrote: ↑Wed Aug 07, 2024 9:38 pm
Its hard to get more letters of testamentary, so getting only what you now think you will need is risky. Get more they are cheap.

Why you make accounts with another person with survivorship. (need to trust the person though) Elderly people have done this with a son or daughter and low and behold the son or daughter takes all the money.

It is definitely not hard to get additional letters testamentary, as long as the estate has not been formally closed. Most experienced probate attorneys never close an estate, because there is always a possibility that other assets for which letters are needed will be discovered, even years later.

The executor or the executor’s attorney can obtain new letters testamentary from the probate clerk in the county in which the Will was probated.

It may not make sense to obtain a large number of letters testamentary initially because many third parties (brokerage companies in particular) will require that recent letters be presented (within last 60 days).

Don T

Yes the attorney can get more. But then you have to pay him for doing that. The OP was only going to get one.

The person serving as executor does not have pay an attorney. As I noted, the executor can go in person to the probate clerk’s office himself and get one himself without engaging an attorney to do so.

Don T

philip964 wrote: ↑Wed Aug 07, 2024 9:38 pm
Its hard to get more letters of testamentary, so getting only what you now think you will need is risky. Get more they are cheap.

Why you make accounts with another person with survivorship. (need to trust the person though) Elderly people have done this with a son or daughter and low and behold the son or daughter takes all the money.

It is definitely not hard to get additional letters testamentary, as long as the estate has not been formally closed. Most experienced probate attorneys never close an estate, because there is always a possibility that other assets for which letters are needed will be discovered, even years later.

The executor or the executor’s attorney can obtain new letters testamentary from the probate clerk in the county in which the Will was probated.

It may not make sense to obtain a large number of letters testamentary initially because many third parties (brokerage companies in particular) will require that recent letters be presented (within last 60 days).

Don T

philip964 wrote: ↑Wed Aug 07, 2024 9:38 pm
Its hard to get more letters of testamentary, so getting only what you now think you will need is risky. Get more they are cheap.

Why you make accounts with another person with survivorship. (need to trust the person though) Elderly people have done this with a son or daughter and low and behold the son or daughter takes all the money.

It is definitely not hard to get additional letters testamentary, as long as the estate has not been formally closed. Most experienced probate attorneys never close an estate, because there is always a possibility that other assets for which letters are needed will be discovered, even years later.

The executor or the executor’s attorney can obtain new letters testamentary from the probate clerk in the county in which the Will was probated. The cost in most counties is $2 per letters testamentary.

It may not make sense to obtain a large number of letters testamentary initially because many third parties (brokerage companies in particular) will require that recent letters be presented (within last 60 days).

Don T