When someone dies, their estate must go through the probate process. This is true whether or not the deceased had a will. Probate is the legal process of settling an estate, and it can be complicated.
In Texas, the court may require that an attorney handle the probate process, depending on the size and complexity of the estate. But is an attorney legally required?
What is Probate & Is Probate Required?
Let’s first pause to consider what “probate” is, as probate may not even be needed.
Probate is the legal process of proving that a will is valid and that the deceased person’s assets are distributed according to the will. If there is no will, probate refers to the court process to identify who the heirs are and to distribute the decedent’s assets to the heirs according to Texas law.
Before getting to the question of whether a probate attorney is required, one has to consider whether probate is even required. Probate is not always required in Texas. For example, small estates do not require probate in some cases. The small estate affidavit may be used to avoid probate. Probate may also be unnecessary if the only asset is real estate and an affidavit of heirship can be used.
Is a Probate Attorney Required in Texas?
Assuming that probate is required, what then? Do you have to hire a probate attorney?
The answer is “maybe.” The courts have said that a probate attorney has to be hired if the estate has more than one beneficiary or heir. This is because the personal representative has to represent the interests of the other parties. One has to be an attorney to represent more than themselves.
So there you have it. If you are dealing with an estate where you are the only beneficiary or heir, you are not legally required to hire an attorney. If the estate has more than you as the beneficiary or heir, then you do have to hire a probate attorney.
Hiring a Probate Attorney Even if Not Required
Even when you are not legally required to have a probate attorney, you still may want to hire a probate attorney.
Even if there is only one heir or beneficiary, it is still advisable to have a probate attorney, especially if there are any potential disputes or complications. For example, if there is a creditor who is owed money by the estate, or if there is a property that needs to be sold, an attorney can help to ensure that the process is handled smoothly and efficiently.
Here are examples of other instances when it is advisable to hire a probate attorney, even if not required:
- Complex Estates: If the deceased person’s estate has a variety of assets, significant debts, or potential tax implications, it might be wise to consult with an attorney.
- Disputes: If there’s a likelihood of a will contest or disagreements among heirs or beneficiaries, legal counsel can help navigate these challenges.
- Unclear Wills: In cases where the will’s language is ambiguous or its validity is questionable, an attorney can provide clarity and guidance.
The Pros and Cons of Hiring a Probate Attorney
Ultimately, the decision of whether or not to hire a probate attorney is a personal one. However, it is important to weigh the pros and cons carefully before making a decision.
Here are some of the pros of hiring a probate attorney:
- They can help you understand the probate process and your rights and responsibilities.
- They can help you gather the necessary paperwork and file the required court documents.
- They can represent you in court if necessary.
- They can help you avoid mistakes that could delay or complicate the probate process.
Here are some of the cons of hiring a probate attorney:
- It can be expensive.
- It can be time-consuming.
- You may not need all of the services that an attorney can provide.
The Probate Process in Texas
It can also be helpful to consider the steps in the probate process as this can help inform as to whether a probate attorney is required for the estate. This can help you decide whether this is something you can actually do yourself and if you have the time to put into it.
The following are the basic steps in the probate process in Texas:
- File a petition with the court. The first step is to file a petition with the probate court in the county where the deceased person lived. The petition must be filed by the executor of the will, or by someone else who is interested in the estate. The petition must include the following information:
- The name of the deceased person
- The date of death
- The county where the deceased person lived
- The names of the heirs and beneficiaries
- A description of the deceased person’s assets
- The name and address of the executor
- Appoint an executor. The court will appoint an executor to oversee the probate process. The executor is responsible for managing the estate, paying the deceased person’s debts, and distributing the assets to the heirs and beneficiaries. If there is no will, or if the named executor is unable or unwilling to serve, the court will appoint someone else to be the executor.
- Hold a hearing. The court will hold a hearing to approve the appointment of the executor and to determine whether the will is valid. If there are any challenges to the will, the court will hear those challenges at the hearing.
- Notify heirs and beneficiaries. The executor must notify all of the heirs and beneficiaries of the estate of the probate proceedings. This notification must be in writing and must include a copy of the will, if there is one.
- Inventory assets. The executor must inventory the assets of the estate. This includes all of the deceased person’s property, such as real estate, personal belongings, and financial accounts.
- Pay debts and taxes. The executor must pay all of the deceased person’s debts and taxes. This includes debts such as credit card bills, medical expenses, and funeral costs. It also includes taxes such as state and federal income taxes and estate taxes.
- Distribute assets. The executor must distribute the assets of the estate to the heirs and beneficiaries according to the terms of the will. If there is no will, the assets will be distributed according to the laws of intestacy.
As you can see from these steps, the probate process is not fast. It can take several months or even years to complete. The exact amount of time it takes will depend on the complexity of the estate and whether there are any challenges to the will or other complications.
Probate attorneys are required in most probate cases in Texas. The court can even require a probate attorney when it is not legally required. Most Texas courts require an executor to be represented by an attorney when completing the probate process. The court may also appoint an attorney to represent the interests of any party who is not represented by counsel.
Our Houston Probate Attorneys provide a full range of probate services to our clients. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.