Too often, the custodian of a will delays or otherwise refuses to deliver the will to the Probate Clerk.  There are a number of reasons why this happens.  Sometimes the person is just too lazy to get around to it, while other times the person with the will mistakenly believes that because the estate has little or no money in it they no longer have a duty to deliver the will.  Still other times the custodian of the will stands to gain more from the estate if the will is not probated.  Whatever the case, Texas Probate Code Section 75 requires the custodian of a will to deliver it to the clerk of the court upon receiving notice of the testator’s death.  If they refuse, a person can file an Application to Compel Delivery of a Will and have it served upon the custodian.  The custodian must then either deliver the will to the court or appear at a hearing and give good cause as to why said will has not yet been delivered.  Failure to do so can lead to the custodian being placed in jail until the will is delivered and sued by anyone damaged by the custodian’s failure to deliver the will in a timely fashion.

In Texas, judges have considerable discretion when deciding whether or not an executor is qualified to administer an estate. Texas Probate Code 78(e) says anyone “whom the court finds unsuitable” can be disqualified from administering the estate, even if the will specifically names them as the preferred executor. There are a number of reasons why a judge might decide to disqualify someone, but one of the most common is that there is a conflict of interest between the executor and the estate. I’ve also seen instances where someone with a recent bankruptcy was deemed too financially irresponsible to administer the estate. Ultimately, the decision rests with the judge, but unless there is something seriously wrong with the executor then the burden will be on another interested party to prove to the court that the executor is indeed unsuitable to serve. A judge generally will not disqualify an executor on their own accord.

In Texas, a muniment of title is a unique procedure which transfers real estate to beneficiaries without a deed.  Ordinarily, a deed can only be transferred or sold if the owner signs off on it – a difficult proposition since they are deceased.  A muniment of title removes the name of the deceased from the deed and transfers the property.  The procedure is advantageous because a full-blown probate proceeding is not required, and thus the timeframe to settle the estate is shortened.

The muniment of title process is straightforward.  First, the “requestor” fills out an application and files it with the court along with a filing fee.  A hearing is then held, during which a witness will attest to the cause of death and the will must be proved by a written attestation or witness testimony.  Finally, a judge will order the will to probate under muniment of title.  The order should be filed in every county in which the testator owned real estate.

If you are ever named as the executor in a will you’ll need to have the will accepted into probate.  Probating a will in Texas is a fairly straightforward process:

1. The first thing you’ll need to do is find the original will.  This isn’t as easy as it initially sounds: wills can be locked away in yet unknown safety deposit boxes or scribbled down on cocktail napkins.
2. The executor will usually contact an attorney and file an application for probate along with a filing fee and the original will.  An application for probate is a short document containing facts about the deceased, the will, and the property in question.
3. The county clerk then issues a citation and posts notice at the courthouse that an application for probate has been filed.
4. The Texas Probate Code requires that the notice be posted for at least ten days, excluding the day on which the notice was initially posted.  After the ten-day waiting period your attorney can schedule a probate hearing on your behalf.
5. At the probate hearing your attorney will ask you some simple questions pertaining to the will.  Unless the will’s validity is in question, the judge will then usually sign an order admitting the will to probate.
6. The executor will then need to sign an oath which swears that they will fulfill their duties as the independent administrator of the estate.
7. After signing the oath the executor is able to order “letters testamentary” from the court.  Letters testamentary give the executor the authority to conduct the business necessary to administer the estate, such as transferring money, selling property, and closing bank accounts.
8. The executor has 30 days from receiving the letters testamentary to give notice to potential creditors.  The executor must give notice even if he knows for a fact that the estate does not have any creditors.  Notice is given by publication in a local newspaper and must include a location where creditors can file claims. The executor must also send out certified letters to any charities named in the will.  Proof that these tasks have been completed, such as an affidavit from the newspaper publisher, must be filed with the court.
9. Within 90 days of qualifying as the executor, the executor must file an inventory with the court listing all of the assets which will pass under the will.  Assets that will pass outside of the probate process, such as life insurance or trust assets, need not be included.
10. If the estate is large, the executor will need to file a federal estate tax return within nine months of the death of the testator.