The probate process isn’t as predictable as it used to be. Around 2014, Texas completely overhauled its estate and probate laws, mostly for the better. However, the courts have had a few years to find ways to make the clarified process as clear as mud. The way our common law system works (in this state and in this country), is that our legislators write the laws for people to follow. When the legislature inevitably fails to write a law to cover every situation, the courts’ job is to fill in the blanks and/or interpret the laws for each situation.
Even before Covid, many outlying situations forced the probate courts to make interpretations. These interpretations, sometimes on minor procedural issues, differ from judge to judge, even in the same county. Covid certainly exacerbated the situation, as it did with many other things. This means that you, as the executor for “will A”, will have a completely different experience than the executor for “will B”. Why? Judicial discretion.
In my daily practice, I have seen Judicial discretion impact families in numerous ways. How? Some judges allow out of town witnesses to attend hearings via video conference while others require in-person appearances. Some judges are well-versed in probate proceedings while others are new to the probate court and require additional evidence and testimony. Courts enact procedural changes at their discretion. Recently, two days before a scheduled hearing, the court emailed me regarding a major procedure change that was being instituted ASAP.
What do these discretionary changes mean? Unfortunately, these changes mean probate cases take longer and cost more to settle. 2021 has seen an increase in the number of probate cases across the state of Texas, it is very important to hire an attorney and start the probate process as fast as emotionally and reasonably possible. Between the number of cases in the probate court system as well as the last-minute procedural change that seem to be happening all the time, you as the executor and the beneficiaries will be best served by acting quickly.
As recently as two years ago, I used to be able to provide definitive answers to commonly asked questions. Now my probate consultations go something like this: “Well, the law says [this], but the past few times I’ve been in that county’s court, they might require [extra procedures].” There is simply no way to know what discretionary changes are coming down the pipeline.
Working with a qualified probate attorney is key to successfully completing the probate process. If you or someone you know needs to start the Texas probate process, contact Crain & Wooley for a complimentary consultation.