Probate and Probate Litigation
Probate is the orderly method of distributing the assets of a deceased person following his or her death. A probate may be testate (died with a Will) or intestate (died without a Will).
Testate Estates (With a Will)
If a person has a Will upon his or her death, the probate court will honor the wishes of the deceased person (“Decedent”). Probate of an estate with a Will generally has a person or persons identified in the Will to serve as the Executor. Unless there is a contest to the appointment, usually the first named Executor that is alive, willing and legally able to serve is generally appointed. The Will determines if a bond or surety is required. It is up to the Executor to pay the debts of the estate and to distribute the assets of the estate according to the Will.
Probate is initiated with the filing of an application to open the estate, to enter the Will into probate and to appoint the Executor. There are specific rules and statutes that require notification to heirs and creditors of the estate and time frames for heirs to contest the proceedings or any portions of the petition. Texas law requires the Will be filed within 4 years after the death of the testator. Probates with a Will are typically not overly expensive or complicated and can be completed in approximately 90 days.
Intestate Estates (Without a Will)
When there is no Will, court intervention is required. Texas law has very specific provisions about how a decedent’s estate will “pass” upon that person’s death. While these “Descent and Distribution” laws may be straightforward in some circumstances, in others, they can be very difficult to maneuver.
Probate is initiated with the filing of an Application to Determine Heirship. The court will assign an attorney ad litem (an attorney appointed to advocate for the unknown heirs) to verify or determine the heirs of the decedent. An Application and Order to Appoint an Independent or Dependent Administrator will also be filed in order to designate the person who will be responsible for closing out and distributing the estate’s assets and paying off its debts. As in a Testate probate, proper notification to heirs and creditors of the estate is required by statute, and proper accounting of the estate must be made and presented to the court. The process is more lengthy and complicated than probates with a Will.
Both Testate and Intestate Estates are subject to Probate and should be handled with an Attorney. Disputes frequently arise along the way, which should be navigated with an attorney by your side. The attorneys at West & West have encountered a multitude of Probate scenarios, from simple to complex, and that experience can go to work for you.
The attorneys at West & West represent plaintiffs and defendants in probate litigation matters, including Will contests, breach of fiduciary duty and other probate related claims. Will contests and court battles over a loved one’s estate are extremely emotional and complex. Our compassionate and experienced attorneys and staff attempt to alleviate the stress by providing you with honest and knowledgeable legal advice. We will keep you informed throughout the entire process so that you always know the status of your case and our legal strategy.
Wills and other estate documents are difficult to overturn because the decedent is unable to testify regarding his or her wishes. If you are involved in a contest over a Will or an estate, let the knowledgeable and experienced attorneys at West & West protect your rights and wishes of your loved