Byron R. Berry

 By Byron R. Berry

1. How do I get started?

Find the Last Will and Testament of the deceased.  If you have made an exhaustive search and cannot find the Will, a copy will do.  Take the document to your attorney, assuming your attorney does probate work, and decide if a probate proceeding is necessary.

Secure the assets of the deceased as quickly as possible (a video of the assets is advised and easy now that most folks have  that capability through your phone).  Change locks and secure or remove important looking documents.

2. So when do we read the Will like they do on TV?

There normally is no formal reading of the Will as seen in movies and on TV.  During the process of probating the Will, a copy will be made available to the beneficiaries and direct heirs of the deceased and they can read it at their leisure.

3. I have been told by the bank or stock broker I need “Letters.”  What is that?

“Letters” is shorthand for Letter of Testamentary.  This is a one page document issued by the County Clerk after a Will has been submitted to Probate and all the proper Testimony has been given and Orders issued by the Court giving someone legal authority to handle the estate of the deceased.

4. Do I have to probate the Will?

That depends on the nature of the assets the deceased owned and if there are bills that need to be paid.  If the deceased died with no debt and has only clothing and furniture, you probably don’t need to probate the will if all the heirs agree to a distribution

5. Once we file the Will, how long will it take to have a hearing and get the Letters of Testamentary?

The Will has to be on file for 10 days and then the Court can set a hearing.  In Denton and most other counties in North Texas, you can get a hearing date three weeks after the initial filing.  Once the Executor is appointed, a simple inventory is required to be done within 90 days.  I say simple because you don’t need to go into great detail or hire an appraiser.  The estate is described in broad terms like “personal items”, “contents of house”,  and so forth.

6. Will the Court divide up the estate?

Generally, no.  The Court gives the Executor the duty to carry out the terms of the Will.  Some things like stocks, bonds and cash divide up very easily.  Other items like say land or personal assets don’t divide up well so there is an Estate sale and the proceeds from the sale are divided.

7. How long will it take to finish the whole Probate process?

In most cases, Probate in Texas is very streamlined and quick assuming your attorney knows probate and generally practices in that area.  In and out in less than 90 days.  If there are problems getting something sold or if the deceased owned a business that will take time to value and find a buyer, it may take longer.  Of course if someone challenges the validity of the Will, the process will be delayed.

8. Can a Will be challenged?

There are several ways to challenge the validity of a Will.  Was the person making the Will mentally capable, was there duress, was the Will executed with all the formalities required by law? However, by and large a Will prepared by a qualified attorney is very hard to challenge.

9. But what if the Will says that anyone that challenges the Will gets nothing?

Sounds good in theory but as a practical matter it normally doesn’t work.  Lets say you have three kids and leave one out of your Will.  The child that gets left out has no incentive not to challenge the Will. If the Will is help to be valid, he gets zero.  If he challenges the Will and wins, he gets one third.

10. What should be done about the life insurance?

Normally a Will does not control who gets the proceeds from a life insurance policy.  The policy names a beneficiary so all that needs to happen is the beneficiary show proof of death and identification to prove you are the beneficiary.

In the event there is no beneficiary named, or the named beneficiary does not survive the policy holder or the named beneficiary is the estate of the deceased then the proceeds would be a part of the probate estate.

11. I’ve heard I should leave a dollar to someone I don’t want to share in my estate.  Is that a good idea?

No its a bad idea.  The Executor of your estate has enough going on without having to send a check for ONE dollar to and unhappy heir.  That’s just waving a red cape in the bull’s face.

The reason this got started is because word got around that in Texas if an heir got left out of a Will because the deceased didn’t know they existed,  then the unknown person had a right to a share of the estate.  The solution was to leave someone a dollar to prove you know them.  I don’t want to get off on a tangent here, but it’s very hard for someone to prove you don’t know them if your already dead.

Bottom line if you don’t want one of your kids to share in the estate just say so in the Will.  Many times I have prepared Wills that say something to the effect that a child has been purposely left out of the Will because the decedent took care of them during their life. By doing this, there is something the child can put their head around without getting into a feud with siblings.