Named Executor in a Texas Will? What to Ask Before You Hire Counsel

An executor who has just been handed a will and a death certificate usually assumes the next step is paperwork, and in a mechanical sense it is: an application to probate the will, a proposed order, an oath, an inventory. What surprises most people is that filing those documents is not treated as clerical self-help. The estate is a separate party, the beneficiaries are other people, and an executor who signs and files on the estate's behalf is acting for them rather than for himself. That distinction is the whole reason the attorney question comes before the probate question.

1. Why filing for an estate is not filing for yourself

A Texas court will let an individual represent himself in his own matter, and an executor who files a small-estate affidavit as an heir is arguably doing exactly that. An independent administration is different in kind. The executor is a fiduciary acting for creditors, beneficiaries and the estate itself, so the courts have long read that role as representing others, which only a licensed attorney may do. County clerks in practice will often decline the filing outright rather than let it fail later. Compare the two paths honestly: the affidavit route may need no counsel at all, while a full administration almost always does.

2. Flat fee or hourly, and what each one really buys

Most probate attorneys handling an uncontested independent administration will quote a flat fee, because the work is predictable: one application, one hearing, one order, one set of letters testamentary. Hourly billing shows up where the facts are messy, an heirship proceeding, a missing beneficiary, real property in two counties. Neither is inherently cheaper. What matters is the boundary, so ask precisely which filings sit inside the quoted number and which trigger a new charge. A flat fee that excludes the inventory, appraisement and list of claims is not the same product as one that includes it.

3. Who drafts, who appears, and who answers the phone

In a small firm the attorney you meet may draft everything personally; in a larger one a paralegal prepares the application and the attorney reviews it before signing. Both arrangements are ordinary and neither is a problem, but the billing consequence differs, and a careful reader asks the rate for each person who will touch the file. Ask also who stands up at the hearing to prove the will, since that is the appearance the letters testamentary depend on. Then ask what happens if the court passes the case and it must be reset weeks later.

4. What the fee does if an heir contests

Almost every flat fee assumes nobody objects, and almost every engagement letter says so somewhere in the middle. A contest converts a thirty-day administrative matter into litigation with discovery, depositions and a contested hearing, and the fee structure converts with it. Settle in advance whether the firm handles contested probate at all or refers it out, because a referral at that stage means starting over with new counsel and a second retainer. Ask, too, whether attorney's fees for defending the will are payable from estate assets, since in many administrations they properly are.

5. Standing, engagement, and the paper you keep

Verify the license before the first payment. The State Bar of Texas publishes each attorney's bar number, license date, practice location and public disciplinary history, and a two-minute check there is worth more than any directory listing. The written engagement should then name the exact proceeding, identify who the client is (the executor in that capacity, not the family), list the included filings, state the hourly rates and the deposit, and explain how court costs, publication fees and certified copies are billed on top. Keep it with the estate file; the beneficiaries may ask what the estate paid and why.

6. The filings that sit outside probate entirely

Counsel handling the court side does not automatically handle the tax side, and the two run on separate calendars. The estate needs its own taxpayer identification number before a bank will open an estate account, and the Internal Revenue Service is responsible for that registration along with the final individual return and any fiduciary return the estate owes. Ask directly whether the firm prepares those or expects a CPA to, because an executor who assumes the flat fee covered everything discovers the gap in April. Clarified at the first meeting, it costs nothing.

The questions above take perhaps twenty minutes to work through, and an attorney accustomed to probate will answer all of them without hesitation, often before being asked. That fluency is itself the signal worth reading.