Carefully review the Will and any related documents before you attempt to file any type of application for probate of the Will. What you find can substantially impact the type of probate proceeding necessary in your specific circumstances, the type of notice you must give and to whom, as well as the type of evidence you will need to offer at any hearing on your application.
Some key things you should check:
- Was the Will properly executed by the deceased and at least two witnesses?
- Is there a self-proving affidavit attached to the Will, signed by the deceased and at least two witnesses in front of a notary?
- Does the language of the self-proving affidavit substantially comply with the statutory form set out in Section 59 of the Texas Probate Code?
- Have you located every Codicil that amended or altered the Will (in whole or in part)?
- Was each Codicil properly executed by the deceased and at least two witnesses?
- Is there a self-proving affidavit attached to each Codicil?
- Is the Will (and each Codicil) an original document or a photocopy?
- Are you the person named as the first executor in the Will?
- Does the Will contain a provision stating that the executor may serve “independently” of the court? (see our previous blog post: http://texprobateblog.blogspot.com/2009/06/most-important-words-in-your-will.html)
- Does the Will contain a provision stating that the executor may serve “without bond?” (see our previous blog post: http://texprobateblog.blogspot.com/2009/06/most-important-words-in-your-will.html)
- Does the Will contain a “residuary clause” or other language that disposes of all of the decedent’s non-probate property?
If the answer to any of these questions is “No,” there will be a few extra steps to take as part of the probate process in your situation. You should seek advice from a probate lawyer to help you determine your next steps.
By: Cynthia W. Veidt
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