Probating a Will: Tips for the Non-specialist
by Judge Chris Wilmoth
No matter what your legal specialty, friends and family expect you to know how to probate a will. Based on the best practices of the probate lawyers appearing in my court, here are some tips for non-specialists.
First of all, court staff is always happy to help non-specialists look good to their clients, so never hesitate to ask for help.
Refer to the Decedent by name or by relationship to the witness. Eliminating legalese helps make your witness more comfortable testifying.
In most cases, nine facts must be established to probate a will and obtain letters testamentary:
- The person is dead;
- The application was filed less than four years after death;
- Jurisdiction and venue are proper;
- Citation was served and returned in the manner and length of time required;
- The will offered for probate was never revoked;
- The will was executed with the formalities and solemnities and under the circumstances required to make it valid;
- The testator was at least 18 years old (or an exception applies) and of sound mind;
- The proposed executor is entitled to letters; and
- The proposed executor is not disqualified.
Prove the first two facts by asking if Decedent died on a particular date, leaving the judge to determine that four years have not passed. You can avoid sounding like a lawyer by not asking if four years have passed since last month. (If four years have passed, prepare the witness to explain why the applicant did not probate the will sooner.) Ask leading questions. No one will object and you can spare the witness the embarrassment of forgetting the exact date their loved one died.
Dallas probate courts are statutory probate courts; so jurisdiction is understood. Venue is usually shown by asking whether Decedent “had a domicile or fixed place of residence” in Dallas County. Courts permit informal phrasings (e.g., “Decedent made his home in Dallas County?”) so long as required findings can be made.
Most witnesses know nothing about citation, so ask the judge to take judicial notice. As a matter of practice, Dallas probate courts alert counsel if citation is bad and will not set the hearing before the return date, and so this is rarely a problem.
Proof that the will was not revoked is straightforward: you show the witness the will being offered for probate and ask, “This will was never revoked, right?” Don’t ask if the will is self-proved because most witnesses do not know. Again, ask the court to take judicial notice.
If the will is not self-proved, testimony must show that Decedent was at least 18 years old (or an exception applies) and of sound mind and the will was made with the solemnities and formalities and under the circumstances to make it a valid will. This proof must be made, even if no subscribing witness can testify. (Sometimes attorneys ask if Decedent was over 18 and of sound mind, even when the will is self proved, because the witness expects to be asked these questions.)
Someone is “entitled” to letters if the will names him or her as executor. If the person seeking letters is not the first-named executor, the witness must explain why. In rare instances, Decedent divorced the named executor after signing the will and it becomes necessary to ask about Decedent’s former marriage. If this is not an issue, do not ask a new widow or widower whether Decedent’s marriage was terminated before his or her death.
Attorneys sometimes ask if the witness reviewed Section 78 of the Probate Code and agrees that no disqualification applies. However, some judges prefer testimony on each disqualification listed in Section 78, particularly the requirements that the proposed executor not be an incapacitated person, a convicted felon or a nonresident without an agent for service of process. Many attorneys cover residency when introducing the witness and ask for judicial notice of any Designation of Resident Agent during the disqualification testimony.
Not all allegations that belong in the application need to be covered at the hearing, e.g., whether children were born to or adopted by Decedent after the will was made and whether the will leaves anything to a charity, the State of Texas or a state agency. The will can be probated either way. Also, letters testamentary can issue without proof that administration is necessary.
Finally, consider submitting your written proof, order and oath to the court for review the week before the hearing to make sure you include everything the judge wants to see.
Judge Chris Wilmoth presides over Probate Court No. 2. He can be reached at email@example.com.