First of all, what is “probate”? The terms refers to actions taken to “prove” up an estate.
- Let’s start with what happens when a person dies without a will. The Estates Code details who succeeds to the assets of the deceased person who dies without a will, that is intestate. Courts get involved to determine who those heirs are. This is called an heirship proceeding. The court takes testimony from disinterested witnesses who testify on what they know about the deceased’s family. The court will also appoint an attorney ad litem who conducts his or her investigation into the make up of the heirs. Once the court is satisfied with the evidence presented it determines who the heirs of the deceased are by court order.
- Let’s look at wills. There are basically four types of wills: the oral will, the holographic will, the executed will and the self-proved executed will. A person on his or her deathbed can dictate his testamentary wishes to two disinterested witnesses. A writing is created as soon
as possible memorializing the wishes of the “oral” testator. That writing is then probated or proven in open court. There are very strict procedures for this will, more detailed than space here allows.
- A holographic will is a handwritten will. It must be dated, written and signed in the hand of the testator or testatrix. It must be authenticated in court by witnesses familiar with the handwriting of the writer of the will.
- An executed or formal will is typewritten and is witnessed in writing by at least two witnesses.
- An executed self-proved will is a typewritten will that comes with a “self-proved” affidavit. The attached self-proving clause shows the signatures of the testator/testatrix and of two witnesses. These three parties signing the will have their signatures witnessed by a notary public. The self-proved will does not require in-court testimony to authenticate the signature of the testator.
- Wills can be very helpful. They can make detailed designations of the assets to be passed to named beneficiaries and can contain trust language.
- On the contrary heirship proceedings can be very laborious and expensive.