Probate and Guardianship Matters

Texas law provides that an application for probate of a will must be filed within four years of death, but the court can allow a late-filed probate if there is a reasonable explanation for the delay. If an executor fails to file for probate by the mandated deadline without a reasonable explanation for the delay, then the process moves forward as if there were no will at all. In that situation, the deceased’s assets are divided among legal heirs based on inheritance rules under state law.

After a will has been filed for probate, the court will schedule a hearing to prove up the will and facts relating to the identity, residency, and estate of the decedent. If the court is satisfied with the evidence presented, it will admit the will to probate and issue letters testamentary to the executor or administrator. Notices are also published in the newspaper to alert creditors and beneficiaries that the will is being probated.

Executors who are authorized by the court must notify any estate creditors about the deceased’s will being probated. In Texas, executors have one month to provide this notification.

After a court admits someone’s will in the probate process, the executor has 60 days to notify all named beneficiaries in writing. These communications must include a copy of the will and the court’s order admitting the will for probate.

Most probate matters can be resolved within a few months, but it can take much longer if the case is contested or complex. If no beneficiaries or creditors file claims against an estate, the process can go quickly. If they do, expect it take more time.

There are streamlined alternatives to probate of a simple will or estate that may be available, such as Affidavit of Heirship and Probate of Will as Muniment of Title. 

Most Texas courts require that a lawyer be involved in the guardianship appointment process because of the complexity of guardianship laws and the importance of protecting the rights of people who are alleged to be incapacitated. Guardians are appointed only when a court determines there is clear and convincing evidence that a guardian is needed.

Before a judge will approve a guardianship, a doctor must certify to the court that the ward is incapacitated, unless the person is a minor. There are specific requirements for a doctor’s certification that need to be addressed with a lawyer before a ward submits to a physical or mental evaluation.

Texas law provides a priority list when a court determines that a guardian should be appointed. If a ward is a minor child, the following people can be appointed as a guardian (listed in ranked order):

1. The ward’s parents;
2. Anyone properly designated as a guardian by the ward’s last surviving parent;
3. The ward’s grandparents or great-grandparents;
4. The ward’s next of kin; and
5. Non-relatives.

If the ward is an adult over the age of 18, then these are the preferred guardians:

1. Anyone properly designated as a guardian by the ward prior to the ward becoming incapacitated;
2. Anyone properly designated as a guardian by the ward’s last surviving parent (specific cases);
3. The ward’s spouse;
4. The ward’s next of kin; and
5. Non-relatives.

When two or more people with the same priority designation are eligible, then the court will decide which one should be named as the guardian. The court also is not bound by the priority list, and may decide that someone lower on the list should be named as the guardian based on a variety of factors.

All guardians of the estate are considered fiduciaries under Texas law, which means they are legally required to protect a ward’s assets. These guardians must publish a notice to creditors and provide an accounting of the assets held by the ward. They also must provide an annual accounting that shows the court how much of a ward’s assets were spent during the year and how much money they received.

Texas law requires a court to consider less restrictive alternatives to guardianship of an incapacitated person, which include:

1. use of a medical power of attorney;
2. use of a durable power of attorney;
3. execution of a declaration for mental health treatment;
4. appointment of an agent to receive and manage public benefits;
5. opening a joint bank account;
6. creation of a management trust or special needs trust;
7. pre-need designation of a guardian; and
8. establishment of alternate forms of decision-making based on person-centered planning.

Texas law has recently changed with respect to durable powers of attorney. An agent acting under a power of attorney is a fiduciary with the duty to keep their principal informed concerning all material facts and to account for all assets handled by the agent. The duties apply whether or not the principal—the person whose interests are supposed to be served under the power of attorney—is incapacitated.

Standing to question the conduct of an agent under a power of attorney has been expanded to include persons with a legitimate interest in the principal’s welfare or estate. This is a positive change because abuse by such agents is quite common, and the change in law allows other family members and even friends to take action to challenge the abuse and seek protection for the principal.