Why conflicting answers about probate and letters testamentary without a lawyer in BEXAR CO TX? Lawyer needed or not?

Some lawyers have stated that an attorney is necessary and others have said that if it is simple, uncontested, then it is possible to turn in the forms myself without needing a lawyer to do it for me. (How much would a lawyer charge to handle this- approximately) BY the way, I thought that in ALL cases, a small estate affidavit was not possible if there was a will, but one attorney said if I was sole beneficiary, it could pass intestate so a small estate affidavit was permissible.

San Antonio, TX -

Attorney Answers (3)

Kevin Matthew Koel

Kevin Matthew Koel

Probate Attorney - Houston, TX
Answered

Texas law requires an attorney to represent an estate if the estate has an executor, administrator of guardian appointed because individuals cannot represent entities pro se (without an attorney). An individual can only probate a matter pro se if it is a muniment of title proceeding or small estate affidavit. I think the different responses you received were from attorneys considering different possible probate procedures for your situation. A muniment of title proceeding is considered a simple form of probate (though they can be contested). A typical muniment of title costs around $1500.
I agree that a person cannot use a small estate affidavit if there is a will.
In any event, you should consult a probate attorney to discuss your options. Many attorneys offer free initial consultations and will give you an estimate for the service that is needed. Some will also agree to flat or fixed pricing.
I hope this helps.

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Steven Drew Baker

Steven Drew Baker

Probate Attorney - Austin, TX
Answered

First, the rule under the Texas case law is that all fiduciaries (executors and administrators included) must be represented by a lawyer unless he or she is also the sole beneficiary. If you are not seeking the appointment of an executor or administrator (eg, muniment of title, small estate affidavit), then there is no fiduciary involved.

Second, if you are the sole beneficiary and executor under the will and the only heir if there was no will, then you may, as a practical matter, you may choose not to probate the will - nobody would have standing to challenge your decision.

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James P. Frederick

James P. Frederick

Probate Attorney - Livonia, MI
Answered

Attorney Koel has given you good advice. State laws vary a great deal on such matters. For instance, in Michigan, you would NOT need an attorney to represent you in probate, (although it is a very good idea.) You also COULD file a small estate affidavit despite the presence of a Will, for the reason that the Michigan legislature deemed that a small estate affidavit would take precedence over a Will. The law in Texas is obviously vastly different. So you need the advice of a Texas probate attorney, such as Mr. Koel, to determine what your requirements are.

James Frederick

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