Both testate and intestate probates begin relatively similarly. Under Texas Estate Code §301.002, within four years of death of the decedent (party leaving the estate), an application for the grant of letters testamentary or for letters of administration must be filed. Following the filing of the application, issuance of citation to the necessary parties, and attending the hearing, if the Court is satisfied with the application and testimony provided at the hearing, the Letters of Administration or Testamentary should be issued.
Keep in mind, the cost difference between probating a testate and intestate estate will begin around this time. With a will, a decedent can name an “independent executor” to serve “without bond”. This means the executor is free to handle the assets of the estate, including but not limited to selling and transferring property, without prior approval of the Court. Additionally, the will can authorize the executor to operate a business owned by the decedent prior to their passing and take any action necessary to operate the business. When probating an intestate estate, all actions taken with estate property must be approved by the court. Additionally, if an estate is intestate, probate courts generally require a bond be acquired in an amount equal to approximately 10% of the estate. As stated above, this requirement can be waived in the will saving the estate this additional initial expense.
Next, an executor of a testate estate will be required to give notice to possible claimants and beneficiaries named in the will that the will is being probated. Following this notice the executor must file an Inventory and Appraisement of the assets of the estate. All of this must occur within 91 days from issuance of the Letters Testamentary.
The administrator of an intestate estate, following issuance of letters of administration, must take steps to declare the heirship of the decedent to accurately determine the parties with an interest in the estate. This may involve hiring an attorney ad litem to determine heirship and/or genetic testing if ordered by the court. The administrator will need to provide notice of the proceeding to declare heirship to each possible heir and/or post notice in a publication if the address of the heirs is not known. Additionally, the administrator must provide notice to claimants of the estate (credit card companies, healthcare providers, any other parties owning debt of the decedent) and file an Inventory and Appraisement of the assets of the estate within 91 days from issuance of the Letters of Administration. One can tell that the preliminary duties of an administrator of an intestate estate are more involved as the beneficiaries of the estate are not known and must be determined to the court’s satisfaction.
Generally, unless certain circumstances arise, the beneficiaries of an estate are already identified within the will and are much easier to determine and notify. At this point, the probate of testate and intestate estates is beginning to diverge. The difference in ease and cost of probating the two estates widens as the probate of the estates progress.