The process of filing an orignial will at the courthouse, appointing someone to wind up the estate, and distributing the assets of the deceased is called probate. The question is often asked: What is the soonest one can have a hearing to probate an estate?
The whole procedure starts with the filing of the original will and asking the court to recognize it as the Last Will and Testament of the deceased. The court is also asked to appoint someone to wind up the estate. Your lawyer will begin this process by the filing of a document called an Application for Probate.
Section 51.053 of the Texas Estates Code states that once a will and Application for Probate is filed, a notice must be posted "for at least ten (10) days before the return day of service . . . ." Section 51.104 says that all citations or notices issued by a county clerk must be returned to the court from which the citation or notice was issued "on the first Monday after the service is perfected."
Let's go through an example. Let's assume an original will and Application for Probate is filed at the county clerk's office on March first. Assume the posting occurs on the second. The day of posting is not counted in the ten days (Estate Code Section 51.053). So, the tenth day is the twelfth. You would look at the calendar and the return date is the first Monday after the twelfth. That means that if the tenth day falls on a Monday, you have to wait another week. If the tenth day is a Friday, you only have to wait out the weekend.
So, on that first Monday following perfection of service, the citation or notice is returnable to the court. But, what does that mean?
Section 51.103 states that proof of service is required before the hearing on the Application for Probate can be heard. In probate, that "proof" is provided by the county clerk's office when they certify that the Application for Probate was posted at the courthouse for the required time. Once the proof of service is in the court file, the court can hold a hearing. Here in Harris County, we have four probate courts. Each court has its own day(s) of the week upon which they hear applications for probate of wills. And they have a limited number of "slots" available for such hearings on those days.
The attorney will contact the court and obtain a hearing date. The court gives the hearing date after the proof of service is received. One usually has to schedule the hearing two to four weeks out or all the available slots will be taken. So, this initial process can easily take five to six weeks--and it would be extremely rare if the process only took four weeks from filing of the will to hearing on the Application for Probate. Your mileage may vary.
Written by Donald Ray Burger, Attorney at Law
mail comments to burger@burger.com
First Revision: September 18, 2007
Further updated with the new Estates Code sections: February 2, 2016