What’s a probate prove up hearing? What if there is no will?

What happens at a probate prove up hearing? 

If you are proving up an estate with a valid will.  

If your loved one passed away with a will, this is the simplest prove up in the probate process. After we file our application to probate the will, the court will notify us of when we can have the will “proved up.” If there is a valid will, the court only requires the applicant (you) and attorney to show up to court. 

Once provided with a date by the court, you and your attorney will go together in front of the judge and answer some simple questions about your loved one’s estate and passing. These questions are simple “yes” or “no” questions that are part of the proving up process. 

So long as everything is in order and the application is filed correctly, the judge will order the estate to be probated. Once the order is put in, which is that same day, you and your attorney will go to the clerks’ office and receive what are known as “letters testamentary.” These letters state that you now have the authority to act on behalf of your loved one’s estate. 

What if the will is not valid? 

It is still possible to have your loved one’s estate probated, it is just a bit more of a lengthy process. If your loved one’s will is not valid, that is, it is solely in the deceased’s handwriting (what is known as a holographic will) or it does not have the Texas required “self-proving affidavit”, then there are few extra things that will need to be done at the prove-up.

If we are dealing with a holographic will, you will need to have people come in to court, who are not receiving anything from the will and testify to the loved one’s handwriting. If the will does not have the “self-proving affidavit”, and it was signed by witnesses, those witnesses would need to come to court and testify to the contents of the will. The application is filed a bit differently and it may take a bit longer for a court date. 

What if my loved one did not have a will? 

If your loved one did not leave a will, it is still possible to have the estate probated. There are several types of applications on how the probate can be filed, depending on the value of the estate and what you need to be probated. 

In this process, usually no matter which type of application, the first objective will be to determine the heirs of the deceased. That is, relatives of the loved one who have rights to the estate under the laws of Texas. After that, all of the heirs would need to agree on who the personal representative will be for the estate. This person has the same role as an executor in a will would. 

Once this is established with the court, there will still be a prove up process as mentioned above, just a few more documents will need to be filed and more witnesses may be needed to attend. 

To make things simple, as you can see, it is in everyone’s best interest to have a will drafted. It keeps the process simple for your family members whom are still in the grieving process. We offer will drafting consults and probate consults free, even though it’s a tough subject, it’s one of the two guaranteed events in your life.

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