What Constitutes a Person's Estate:
When a person dies, all of the property that they owned becomes part of their estate. If the person left a Last Will and Testament, or simply called a “Will,” then the Will likely specifies who should get the property belonging to the estate. Where there is no Will, a probate judge determines the heirs-at-law of the deceased person, and those individuals inherit the deceased person’s assets.
Certain types of property can transfer ownership immediately upon the death of the owner, and do not become part of a deceased person’s estate. These types of assets include bank accounts that are jointly owned or are set up with rights of survivorship, and life insurance policies. These assets transfer automatically to the joint owner or beneficiary. However, all other assets that were owned at the time of death will become part of the estate, and will usually require a formal probate action in order to transfer those assets to the heirs.
Opening an Estate When the Deceased Person Left a Will:
Most people think of probating a deceased person’s estate as involving a formal “reading of the Will” at an attorney’s office. While an attorney should review a Will before an estate is opened for probate, the notion of a formal “reading of a Will” is not a reality.
Another common misconception is that a Will automatically conveys authority to a named executor to act on behalf of an estate, or to an heir with respect to certain assets. A Will only has authority if a probate judge says it does. A person can make any number of Wills during their lifetime, and so it is left to the court to decide whether a Will is valid and may be admitted to probate.
Texas courts do not permit pro se applicants to petition for the probate of an estate – applicants must be represented by an attorney.
If a deceased person had a Will, then that Will may be submitted to the local county probate court to open the estate. However, it is not always necessary to probate a Will. Whether a Will should even be opened depends on various factors, which an attorney would determine during a client interview.
Opening an Estate When the Deceased Person Did Not Leave a Will:
When a person dies without a Will, also called “intestate,” a court must make a formal determination of who is entitled to inherit from the deceased person’s estate. Those who stand to inherit are called the deceased person’s “heirs at law.”
If necessary, the court will also decide who will be appointed to act as the administrator of the estate (the term “executor” only applies if the person is appointed under a Will). An administrator, or executor where there is a Will, steps into the shoes of the deceased person regarding the assets of the estate. They may or may not be an heir at law.
As with probating a Will, Texas courts do not allow pro se applicants to petition for the probate of an intestate estate.