What is probate and how does it work in Texas?

To answer this question, we asked R. David Weaver, a Texas attorney with over 25 years experience whose practice offers a wide range of legal services including Texas estate planning, and probate. He explained, “The probate courts in Texas handle the supervision of the distribution of assets of a person who dies – whether there’s a Will or not – and that the probate court would be the forum where you would present the application for authority to act on behalf of the property of the estate.”

How authority is granted

Weaver told us that the authority in Texas is granted by order of the probate court in Letters of Testamentary if there is a Will or Letters of Administration if there is not a Will. He explained, “The person who possesses those letters is authorized to act on behalf of the estate, then has the power to convey property, to gather up the assets of the estate to distribute those assets to the beneficiaries (in case of the Will) or to the heirs-at-law (in the case of no Will) in whatever proportion that they are entitled to them under the terms of the Will or the statute, as the case may be.”

“The person to whom the letters are issued is the person who either has been designated by the Will as the executor, the person who has made an application to the court to be appointed as an executor where there has been no executor named, the executor has died or has refused to serve.”

Bond requirement

Another important aspect to consider is that a bond is required when there is no Will. Weaver continued, “The Court always requires the posting of a Surety Bond, which basically guarantees that the administrator is not going to be irresponsible in his dealing with the estate. The executor is also required to post a bond unless the Will specifies that the executor named is not required to do so. The Will in Texas may specify that no bond be posted by the executor, and most Wills do. That’s a big savings for the estate. The size of the bond depends on the size of the estate, but it’s usually anywhere from $2,500 to $25,000.”

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