Probate a Will

Attorney Information

A pro se, or a "self-help litigant", is an individual who has not retained a lawyer and appears in court to represent themselves and no other person or entity.

Only a licensed attorney may represent a third person or entity in a judicial proceeding in the State of Texas. In most probate or guardianship cases, an individual applicant is not truly representing only themselves, rather they are attempting to represent another person or persons such as beneficiaries, heirs, the estate itself, or, in cases of guardianship, the ward. 

These instances include when an individual is applying for letters testamentary, letters of administration, determinations of heirship, and guardianship of the person or estate, all of which may require the services of an attorney. Unless the applicant is a licensed attorney, filing an application to probate a will without an attorney constitutes the unauthorized practice of law and will not be allowed by the court.

You do not need to be a lawyer to serve as a guardian or as an executor or administrator of an estate; however, you must retain counsel because you will be representing the third party interests of the ward, beneficiaries, or creditors.

This website includes two probate documents under the Orders & Forms page that can be done pro se: the Muniment of Title and the Small Estate Affidavit.

When a Decedent Dies With a Will

Apply:

To begin the process, an Application for Probate will need to be filed in a Texas Probate Court. Generally, you have four years from the date of death to the filing of an application for probate.

Waiting Period:

Once the Application has been filed, Texas Estates Code requires that you must wait approximately two (2) weeks before you can have a hearing on the probate application. During the two (2) week waiting period, the County Clerk posts a notice at the courthouse that an application has been filed for probate. This posting serves as notice to anyone who might want to contest the will that they have a certain number of days to do that. If they fail to file their contest within that period of time, the court can move forward in recognizing the validity of the will.

Hearing:

Once the waiting period has passed, a hearing will be conducted before the Probate Judge. At that time, the judge will recognize that the decedent has died, that the court has jurisdiction of the case, that the person applying to be the executor is qualified to serve, and that the decedent died with a will that was valid. Once a will has been probated, a will can be contested anytime after the will is offered, and up to two (2) years after the will has been admitted to probate. 

Safety Boxes:

Before probate is filed, the only items that can be removed are the deceased's will (which must be turned over to the court representative for tender to the probate court), a burial plot, or a life insurance policy made payable to the named beneficiary.

Fees:

Please see the Bexar County Clerk's website for the latest fee schedule. If you have any questions, please call the Clerk’s office at 210-335-2216.

When a Decedent Dies Without a Will

Given that there are multiple variables affecting the division of assets when the decedent has died without a will, it is highly recommended that you speak to an attorney experienced in the matters of probate before proceeding.

Determination of Heirship:

When someone dies without leaving a will, the court can conduct a formal Determination of Heirship, after an application has been filed by a qualified person. During this process, the court will make a formal declaration as to the identity of the decedent’s heirs at a hearing, and based on evidence presented by the applicant and the report of the Attorney Ad Litem. Pursuant to that declaration of the heirs, the attorney enters an order determining who the decedent’s heirs are and their respective shares of the decedent’s estate. Then, the decedent’s property can be divided and distributed among the heirs.

Affidavit of Heirship:

An Affidavit of Heirship is generally used when someone died without a will, without any outstanding debts at the time of death, and left only real estate in the State of Texas. Instead of going through the probate process to have title to the property transferred to the decedent’s heirs, the heirs can, instead, file the Affidavit of Heirship in the deed records of the county in which any piece of real estate owned by the decedent lies. According to the provisions of the Estates Code, the affidavit must be signed and sworn to by two disinterested witnesses, i.e. two people who knew the Decedent and his family history but do not stand to gain anything financially from the estate, and preferably not related by blood or marriage to the decedent.

Once the affidavit has been signed and recorded in the deed records of the county, it has the effect of linking the chain of title in the decedent’s real estate to their heirs. At that point, most title companies and real estate companies will allow the heirs to sell the property. A form for the affidavit can be found in Section 203.002 of the Texas Estates Code.

Power of Attorney Information:

A power of attorney document is valid only during the principal’s lifetime, not after death. This means that if you’ve been an agent for a loved one, you’re unable to help handle estate affairs after your loved one dies without additional authority. After your loved one dies, the executor of the estate will step up and take charge of financial decisions and other estate affairs.