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

San Antonio, TX |

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.

Attorney Answers 3


  1. 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.

    If this response was helpful, please mark it as helpful or as a best answer. The response provided herein is for informational purposes only and is not intended as legal advice, nor does it establish or intend to establish an attorney-client relationship. You should always speak with a licensed attorney regarding your legal rights before taking or not taking any particular action.


  2. 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

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!


  3. 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.

    NOTICE: The foregoing is provided for general informational purposes only and is not intended to create, and should not be construed as creating, an attorney-client relationship. Legal advice that you rely upon in making important decisions should only be obtained from direct communications with a lawyer licensed in your jurisdiction after there has been a full disclosure of all of the relevant facts. That said, you should never provide information that you intend to be confidential or privileged on a forum such as this, and you should never rely on information provided here as a substitute for such legal advice. Also, please note that any U.S. tax information provided above is not intended to be used, and may not be used, for the purpose of avoiding penalties imposed under the U.S. Internal Revenue Code or for promoting, marketing, or recommending any portion of this communication to any party.

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