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Estate and Probate Terms

Estate and Probate Terms

The following terms are used regularly in estate planning and probate cases. They are either defined by the Texas Estates Code or by common usage or law.

Affidavit of Heirship – A sworn document outlining a decedent's heirs. Generally used to establish title after someone has died intestate (without a will). An affidavit of heirship is presumed true if on file in the County Property Records for longer than 5 years.

Annexed – In probate cases, a will is annexed to an application when the statute of limitations has passed, or the person applying for administration is not a named executor in the will.

Application – A pleading filed with the court.

Beneficiary – A named party in a will or other document (e.g., a paid-on-death designation for a bank account), who takes certain property.

Binding Agreement – An agreement between the parties that is signed by both of them, and is often also filed with the court. It is enforceable as a contract and the Judge may decide to make the agreement enforceable as a court order.

Collaborative Law – A method of alternative dispute resolution where all parties agree to resolve their disagreements without going to court. Each person hires his or her own attorney and everyone works together in a series of meetings to reach an agreement.

County Clerk - Maintains the official court records for the county courts and property records.

Court Coordinator – The person who works for the Judge assigned to your case. He/she receives court papers and assigns hearing dates.

Court Reporter – Types and/or records a record of everything said during a court hearing. The court reporter will prepare a written record if requested for a fee. The Court reporter also tracks exhibits admitted by the Court into the record.

Determination of Heirship – A legal proceeding in which a court determines the legal heirs of a decedent. This is necessary when a person dies intestate and has property that needs to be transferred.

Distribution – The process of transferring property to a beneficiary or heir.

District Clerk – Maintains the official court records for the county's district courts and family law files. The district clerk's office receives all court papers and keeps the divorce files.

Docket Number – The number given to your case by the county clerk's office that specifically identifies your case, also known as a cause number or case number.

Estate – The total property of the decedent managed by the administrator or executor. Not all property ends up in the estate, including property transferred outside of probate (e.g., POD accounts, life insurance proceeds, and real property transferred prior to death).

Heir – Someone defined by law to take the property of a decedent if intestate.

Heirship – See Determination of Heirship

Intervenor – A third party that files into a case.

Intestacy – To die without a will. The state defines who takes a decedent's property if the decedent is intestate.

Intestate See Intestacy.

Inventory – A list of property belonging to the decedent's estate. It is required to report the inventory to the Court in a probate or heirship proceeding.

Judge – The person who hears and makes the final legal decision in your case.

Jury – A body of 6-12 individuals who may determine the outcome of your case.

Non-binding – Typically used in conjunction with arbitration or mediation. A process where no specific result is forced on the parties. There is no penalty if the parties are unable to come to an agreement.

Mediated Settlement Agreement – MSA – A written agreement reached at mediation, signed by all parties and any attorneys that resolves some or all of the issues in a case. An MSA is irrevocable and cannot be modified. Once signed, either party can force a judgment to be entered based on the MSA. While the MSA is binding, neither party is forced to agree.

Mediation – A method of collaborative law wherein a mediator, a third party (usually a non-biased attorney) goes between the petitioner and respondent and attempts to develop an agreement between the two parties. The result is called a Mediated Settlement Agreement (MSA).

Parties – The husband and wife, and anyone else who has filed a court appearance in the case.

Pro Se – Representing one's self in a case.

Probate - The process of presenting a purported will to the Court for approval.

Prove Up – The process of finishing your case in front of the Judge at an uncontested court hearing. At the prove up, one or both of the parties recite the required information to the court. The Judge then has the discretion to approve the terms, grant the divorce and/or make any other orders the Judge believes are appropriate.

Respondent – The party being sued in a divorce or SAPCR. The respondent typically responds to the Petitioner's case.

Small Estate Affidavit - A process unique to Texas that allows an estate that falls below a certain dollar amount to be approved on an expedited and simplified basis.

Waiver of Service – A legal document, signed by the Respondent in the presence of a notary, that states he/she accepts legal notice of the Petition without an official process server or sheriff or constable giving it to him/her. The waiver of service may also have other legal consequences depending on what is stated in the waiver. In order for your divorce to be considered “uncontested” our own waiver of service must be signed and notarized by the other party, otherwise it must be considered a contested case. If the pro se waiver form is used, this cannot be used for our purposes in considering whether your case is uncontested.

Will – A document that meets certain legal requirements and outlines the wishes of a person in how to distribute his or her property after death.