Probate and Administration
While our primary focus is family law, we understand that there are a variety of other legal issues that often accompany these types of matters. At the Law Office of Alexandra M. Geczi, PLLC, we offer basic services in these other areas as well. Contact us today to discuss your options.
What is Probate? How does probate work in Texas?
Probate is the legal process that transfers title of property from the estate of the person who has died, known as the “Decedent”, to his or her beneficiaries. Probate is usually required when the decedent owned real property or financial accounts.
The type of probate will depend on whether or not the Decedent left a valid Will. Probate should be initiated (by filing an Application) within four years after the death of the Decedent. The Application for probate may be filed by the executor named in the Will or by a person interested in the estate. Such interested persons include heirs, devisees, spouses, creditors, and any other person having a property right in, or a claim against, the estate. The Application does NOT have to be filed by the attorney who drafted the Will – the executor or interested person can file the Application own his or her own or hire an attorney of his or her choice.
In addition to probating the Will, the applicant can ask the Court to open an administration of the Decedent’s estate. An administration may be necessary if two or more debts exist against the estate, if the estate should be partitioned among the distributees or beneficiaries of the Will, or if other instances of necessity exist. Administration can be independent or dependent, depending on the circumstances. (See below.)
Overview of the Types of Probate and Administration in Texas
and Firm Rates for Probate and Administration
Probate of Will as a Muniment of Title Only (No Administration).
When to use: when the Decedent left a Will, and the only assets in the estate are the Decedent’s home or a very small bank account.
The following requirements must be met:
- The decedent must have left a valid Will;
- There must be no debts due and owing by the estate (or the only debts that are owed are secured by liens on real estate); and
- There must be no need for a formal administration.
Administration: none. The court’s Order Admitting Will to Probate as a Muniment of Title Only constitutes sufficient legal authority to all persons to pay or transfer estate property to the person or persons described in the Will as the beneficiary of the particular asset.
However, some financial institutions may insist on only releasing estate funds to a court-appointed executor or administrator who has “Letters Testamentary” or “Letters of Administration”. These “Letters” are the documents issued by the court to the court-appointed executor or administrator. If the Decedent had securities or significant bank accounts, you may be forced to ask the court for an administration. Therefore, you should check with the Decedent’s financial institutions before selecting this type of probate proceeding.
Effective January 1, 2010, the firm’s rate for a qualified Muniment of Title in Dallas or Collin county is a flat fee of $950.00. This fee does not included court costs, filing fees, or other related expenses, and travel charges will apply to other counties. This fee is subject to change without notice, and includes the following only:
- Initial consultation with an attorney;
- Preparation of an Application to Probate Will as a Muniment of Title Only;
- Preparation of the Proof of Death and Other Facts;
- Preparation of the Order Admitting Will to Probate as a Muniment of Title Only; and
- Attendance by an attorney at the hearing on the Application.
The rate does not include preparation of tax returns or tax advice. Since no administration is required, all other tasks not specifically listed above are tasks that can be accomplished by you as a distributee of the estate, which is usually just distributing the property to the distributees of the estate. Most clients do not require additional assistance, but if you do, the Firm will be glad to help you with those tasks at the our hourly rate.
Independent Administration (Unsupervised Administration).
When to use: to admit the Will to probate, to give it legal effect, and to appoint an executor to administer the estate. This type of proceeding is the most common type of probate where the decedent left a Will.
The following requirements must be met:
- The decedent must have left a valid Will;
- There must be a need for a formal administration; and
- The Will must provide for independent administration by appointing a person to serve as “Independent Executor” or by providing that no other action shall be had in the court in relation to the settlement of the estate than the probating and recording of the will, and the return of an inventory, appraisement, and list of claims of the estate.
Administration: Yes. The court appoints an executor and issues Letters Testamentary to the executor. The executor will then be responsible for collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the heirs of the estate in accordance with the terms of the Will. In an independent administration, the executor does not need the court’s permission to pay bills or to sell or distribute the assets of the estate, but does need to file an inventory of the estate’s assets with the court.
Effective January 1, 2010, the firm’s rate for a qualified Independent Administration in Dallas or Collin county is a flat fee of $1,250.00. This fee does not included court costs, filing fees, or other related expenses, and travel charges will apply to other counties. This fee is subject to change without notice, and includes only the following:
- Initial consultation with an attorney;
- Preparation of an Application to Probate Will and for Letters Testamentary;
- Preparation of the Proof of Death and Other Facts;
- Preparation of the Order Admitting Will to Probate and Authorizing Letters Testamentary;
- Preparation of the Oath of the Executor;
- Attendance by an attorney at the hearing on the Application;
- Preparation of the Inventory, Appraisement and List of Claims;
- Preparation of the published Notice to Creditors (not to include publishing fees); and
- Preparation of up to ten* Notices to Beneficiaries (not to include certified mail costs).
* A recent change to the Texas Probate Code provides that notice must be given to all beneficiaries named in a Will in those estates where the decedent died on or after September 1, 2007. Because a decedent’s Will could leave property to a large group of persons, notice to hundreds of people could be required, and the Firm must limit the number of Notices to Beneficiaries that it will agree to prepare under a fixed-fee arrangement.
The rate does not include preparation of tax returns or tax advice. The remaining Executor’s duties not specifically listed above are tasks that can be accomplished by the Independent Executor with the Letters Testamentary. Most clients do not require additional assistance, but if you do, the Firm will be glad to help you with those tasks at the Firm’s hourly rate.
Court Created Independent Administration (Unsupervised Administration).
When to use: to admit the Will to probate, to give it legal effect, and to appoint an administrator to administer the estate when the Decedent left a Will but no executor is named in it, or when each executor named in the Will is: 1) deceased; 2) disqualified; 3) unable or unwilling to serve as executor; or 4) is not granted independent status.
For this type of administration, all of the distributees of the decedent must agree on the advisability of having an independent administration and on the person to serve as independent administrator.
The following requirements must be met:
- The Decedent must have left a valid Will;
- There must be a need for a formal administration;
- All of the distributees of the Decedent must agree on the advisability of having an independent administration and collectively designate in the application for probate, a qualified person to serve as independent administrator;
- The Court must find that it is in the best interest of the estate to grant an independent administration.
Administration: Yes. The court appoints an administrator and issues Letters of Administration to the administrator who is responsible for collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the distributees of the estate in accordance with the terms of the Will. In a court created independent administration, the administrator does not need the court’s permission to pay bills or to sell or distribute the assets of the estate, but does need file an inventory of the estate’s assets with the court.
Effective January 1, 2010, the firm’s rate for a qualified Court Created Independent Administration in Dallas or Collin county is a flat fee of $1,500.00. This fee does not included court costs, filing fees, or other related expenses, and travel charges will apply to other counties. This fee is subject to change without notice and includes the following tasks only:
- Initial consultation with an attorney;
- Preparation of an Application to Probate Will and for Letters of Administration Pursuant to Section 145 of the Texas Probate Code;
- Preparation of the Distributee’s Consent and Waiver of Notice for all beneficiaries named in Will;
- Preparation of the Proof of Death and Other Facts;
- Preparation of the Order Admitting Will to Probate and Authorizing Letters of Administration;
- Preparation of the Oath of the Administrator;
- Attendance by an attorney at the hearing on the Application;
- Preparation of the Inventory, Appraisement and List of Claims; and
- Preparation of the published Notice to Creditors (not to include publishing fees).
The rate does not include preparation of tax returns or tax advice. The remaining Administrator’s duties not specifically listed above are tasks that can be accomplished by the Independent Administrator with the Letters of Administration. Most clients do not require additional assistance, but if you do, the Firm will be glad to help you with those tasks at the Firm’s hourly rate.
Dependent Administration (Supervised Administration).
When to use: to admit the Will to probate, to give it legal effect, and to appoint an administrator when the Decedent left a Will but no executor is named in the Will, or when each executor named in the Will is 1) deceased; 2) disqualified; 3) unable or unwilling to serve as executor; or 4) is not granted independent status.
This type of administration is required when the distributees cannot or will not agree on the advisability of having an independent administration or the choice of administrator, such as when the beneficiaries are hostile towards one another or one of the beneficiaries is a minor child.
The following requirements must be met:
- The decedent must have left a valid Will; and
- There must be a need for a formal administration.
Administration: Yes. The court appoints an administrator and issues Letters of Administration to the administrator who is responsible for collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the distributees of the estate in accordance with the terms of the Will. In a Dependent Administration, the court closely supervises the administration of the estate and must approve all bills that are paid and any assets that are sold or distributed. The administrator must also prepare periodic accountings to advise the court of the status of the estate.
Attorney’s fees for this type of administration will almost always be charged hourly and are usually dependent on the number of creditors of the estate, the amount and character of the assets in the estate, and the amount of contention between the distributees. Effective January 1, 2010, our firm’s hourly rate for attorney’s fees is $225.00 per hour.
Small Estate Affidavit (no will)
If there is no Will and the estate is worth less than $50,000 (not including the homestead and certain non-probate assets), the estate may qualify for this procedure. The cost depends on the number of heirs and the difficulty in reaching them, but is generally much less expensive than an Heirship Proceeding (below). However, if property passes to minor children, it may be necessary to establish a guardianship, which can add cost. Rates will depend on the facts of your situation, but usually begin at $500, and do not include court costs, filing fees, or the fee of the attorney ad litem.
Heirship Proceeding (no will)
If there is no will and the estate is worth more than $50,000 (not including the homestead and certain non-probate assets), it may be necessary for a judge to determine who the heirs are. The judge may appoint an attorney ad litem to represent the interests of potential or unknown heirs. The exact cost depends on the number of heirs and the complexity of the estate, but is generally more expensive than probating a will. Furthermore, if property passes to minor children, it may be necessary to establish a guardianship, which can add costly. Rates are based on hourly fees and the facts of your situation, but usually begin at $2,500, and do not include county filing fees, court costs, or the fee of the attorney ad litem.
About Fixed-Fee Probate Rates:
In order to be eligible for consideration for a fixed fee, the following conditions must be met:
- The Decedent must have died a resident of Dallas or Collin County, Texas. Additional travel fees will apply if a hearing is required outside of Dallas or Collin County.
- The Decedent’s date of death must have been within the last four years.
- The matter must remain uncontested, i.e. the family must be in agreement as to an independent administration, the distribution of the estate, and the choice for executor or administrator.
- The executor must be in possession of the original Will (not a copy) and the Will must be valid;
- The Will must appoint an “Independent Executor” or provide for “Independent Administration” or the probate must be a muniment of title proceeding; and
- The Will must be “self-proved.” A self-proved Will usually has a notarized affidavit attached to the back of the Will stating that the Decedent and the witnesses complied with the requirements of due execution of a Will in Texas. The affidavit must be in substantial compliance with the Texas Probate Code Section 59:
THE STATE OF TEXAS
COUNTY OF ________________
Before me, the undersigned authority, on this day personally appeared _______________, _______________, and _______________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said _______________, testator, declared to me and to the said witnesses in my presence that said instrument is his last will and testament, and that he had willingly made and executed it as his free act and deed; and the said witnesses, each on his oath stated to me, in the presence and hearing of the said testator, that the said testator had declared to them that said instrument is his last will and testament, and that he executed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of the said testator and at his request; that he was at that time eighteen years of age or over (or being under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service) and was of sound mind; and that each of said witnesses was then at least fourteen years of age.
(Signed) (Signed) (Signed)
Testator Witness Witness
Subscribed and sworn to before me by the said _________, testator, and by the said _________ and ___________, witnesses, this ______ day of ______.
(Signed)
Notary Public of the State of Texas
Other Estate Administration Expenses
Surety Bond. If the Will does not waive bond, then the Judge may require the Administrator to obtain a surety bond issued by a bonding company. The amount of the bond is usually equal to the amount of debt owed by the estate and the amount of assets in the estate, not including real estate. The bonding company charges a premium for this service that is usually a small percentage (1-2%) of the bonded amount.
Attorney Ad Litem Fees. If the court appoints an attorney ad litem in the proceeding, then that attorney’s fees may be paid out of the estate or by the county, depending on the circumstances. Attorney ad litem fees for uncontested matters in Dallas county are usually $250-350.
How do I begin the Probate Process?
To start on your case, the Executor named in the Will should request the Client Information Worksheet for Probate of Will by contacting our office by email or by leaving a telephone message. The Worksheet will be emailed to you. No consultation is needed prior to completing the Worksheet.
Once the Executor has fully completed the Client Information Worksheet, he or she should send the completed Worksheet and a COPY of the Decedent’s Will to:
The Law Office of Alexandra M. Geczi PLLC
2201 N. Central Expwy., Suite 225
Richardson, Texas 75080
NEVER SEND THE ORIGINAL WILL THROUGH THE MAIL.
A representative from the Firm will contact you upon receiving the Worksheet to discuss payment and to coordinate the delivery of the original Will and the signing of the Application for Probate. If you do not hear from the Firm within 1 week of mailing, please call to follow up.