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Skip Navigation LinksProbate Court No. 2 : FAQ
 
General
Accountings
Guardianships (for difference between Temporary and Permanent go to #29)
Contested Matters
Decedent’s Estates
Heirship Proceedings
Small Estate Affidavits
Open Safe Deposit Boxes
Court Policy Regarding Pro Se Applicants
 
GeneralTop
1. What days of the week does the Court hold hearings?
Probate Tuesday at 8:00 a.m. and Wednesday at 9:00 a.m.
Heirship Wednesday at 10:00 a.m.
Guardianship Tuesday at 9:00 a.m.
Show cause Thursday at 9:00 a.m.
Scheduling conferences Thursday at 9:00 a.m.
Pre-trial conferences Thursday at 9:00 a.m
Ancillary hearings Tuesday at 10:00 a.m.
 

2. Where can I review a file or recently filed documents?

All files are maintained in the Probate Division of the Harris County Clerk’s office, 201 Caroline, 8th floor.
 

3. Does the Court accept fax filings?

The Court does not accept fax filings, except that courtesy copies of pleading filed in connection with contested matters set on the ancillary docket may be sent by fax.
 

4. What number am I on the docket?

All of the dockets of the Court can be found under the “Dockets” link on the Court web page.
 

5. What is the status of this case?

If your question pertains to whether a pending order has been signed, you may check that under the “Signed Orders” link on the Court web page.  Otherwise, your question should be directed by telephone or e-mail to the appropriate member of the Court staff. 
 

6. Has this order been signed?

You may check whether a pending order has been signed under the “Signed Orders” link on the Court web page. If you do not have access to the Internet, telephone the Court and ask.
 

7. Can you tell me why this order wasn’t signed?  Why wasn’t I notified?

Contact the appropriate member of the Court staff by telephone or e-mail. The Court staff attempts to contact counsel with respect to any order that is not signed.
 

8. Can you look in the file and tell me something about a certain instrument?

The Court does not keep physical possession of the files; they are maintained in the Clerk’s office. For the Court staff to obtain a file from the Clerk, review it and answer your question will take as much or more time than it will for you to do so, because you know what information it is you are seeking.  The Court staff will assist you in extraordinary circumstances.
 

9. Can you tell me who are all the attorneys in this case?

The attorneys in contested cases can be obtained from the Court web page.
 

10. How do attorneys get appointments from this Court?

To be appointed as an attorney ad litem in a guardianship case, an attorney must complete the course required by the Probate Code. Upon completion, send your completion letter to Marilyn Lewis, the guardianship coordinator, with a resume and a request to be appointed. 
 

11. Where do I complain if I’m not satisfied with the way my attorney is handling the case?

In very limited situations, the Court staff may be able to be of assistance in resolving the issues between you and your attorney.  Otherwise, you should contact another attorney to assume your representation, or if appropriate, contact the State Bar of Texas.
 

12. What means do you prefer to use for notice?

All notices required to be given by the Texas Probate Code or the Texas Rules of Civil Procedure must be given in accordance with the Code and Rules.  The Court has no other preference. 
AccountingsTop

13. When does an annual account have to be filed in a guardianship?

An annual account must be filed within 60 days of the anniversary of the Guardian’s date of qualification, which is the later of the date of filing of the Guardian’s oath and bond.  An additional 60 days is allowed for the Guardian to make any corrections required and for the Court to approve the accounting before the letters of guardianship expire.
 

14. When does an annual account have to be filed in an administration?

An annual account be filed within 60 days of the anniversary of the personal representative’s date of qualification, which is the later of the date of filing of the personal representative’s oath and bond.
 

15. Explain what an anniversary date is and when are the Annual Report and Annual Accountings due.

The “anniversary date” is the anniversary of the date of qualification of the personal representative. The date of qualification is the later of the date the personal representative’s oath and bond are filed. The annual report is due on the anniversary date. The annual account is due within sixty (60) days of the anniversary date.
 

16. How do I close down a Guardianship of the Person and Guardianship of the Estate?

A final report is required to close an guardianship of the person.  A final account is required to close a guardianship of the estate.
Guardianships (for difference between Temporary and Permanent go to #29)Top

17. When are Guardianship hearings usually heard and whom do I set them with?

Guardianship hearings are on Tuesday at 9:00 a.m. The hearings may be set with Marilyn Lewis, the guardianship coordinator, or any member of the Court staff.
 

18. Where do I get forms to file an application for guardianship?

Neither the Court nor the County Clerk have forms for the application and other documents necessary for the creation of a guardianship.  You may review active guardianship files in the Clerk’s office and obtain copies of documents, or you may go to the County Law Library and look at form books.
 

19. How long does it take to put a Guardianship in place?

It takes an average of 4 to 6 weeks.
 

20. What are the steps involved in creating a guardianship?

  • An application for guardianship is filed, or a doctor or social worker may send a letter requesting creation of Guardianship.
  •   A doctor’s letter is required before the Court Investigator is sent out to meet the proposed ward.
  • The Court Investigator will file his report.
  • An Attorney Ad Litem is appointed.
  • The application is set for hearing.
 

21. Can I appoint the Attorney Ad Litem myself or does the Court do it?

The Court will select the attorney ad litem. If you are filing an application for guardianship, you should also file an application for appointment of an attorney ad litem and an order.
 

22. What is the difference between Guardian of the Person and Guardian of the Estate?

The guardian of the person is authorized to make decisions about health care, living arrangements, and similar matters, but has no authority to expend funds.  The guardian of the estate has all rights and obligations to expend the ward’s funds, subject to prior court approval.
 

23. What amount of money must a proposed ward have to be considered an indigent in this Court?

There is no specific amount of money that constitutes “indigency” under the Probate Code. A guardianship of the estate must be created if the ward has any other than de minimus funds.
 

24. Explain what an anniversary date is and when are the Annual Report and Annual Accountings due.

The “anniversary date” is the anniversary of the date of qualification of the guardian. The date of qualification is the later of the date the guardian’s oath and bond is filed. The annual report is due on the anniversary date.  The annual account is due within sixty (60) days of the anniversary date.
 

25. Explain what Letters of Guardianship are.

The letters of guardianship are the official certificate issued by the Clerk of the Court reflecting that the guardianship was created, and identifying the ward and the guardian. The letters of guardianship provide an expiration date on their face, one year plus 120 days after the anniversary date.
 

26. How do I close down a Guardianship of the Person and Guardianship of the Estate?

A final report is required to close an guardianship of the person.  A final account is required to close a guardianship of the estate.
 

27. Why do I need an attorney to represent me in a Guardianship?

The creation of a guardianship is a very technical matter under the Probate Code.  Numerous steps are required, and strict compliance with the Code is necessary. Although the court staff is as helpful as possible, they are not authorized to practice law, and cannot instruct a non-lawyer about all of the necessary matters that must be accomplished.
 

28. When will an ad litem be appointed in a guardianship?

The attorney ad litem is appointed to represent the proposed ward in connection with the guardianship of an adult incapacitated person as soon as the court investigator files his report with the Court.  The Attorney ad litem is appointed in connection with the guardianship of a minor as soon as the application is received by the Court.
 

29. What is the difference between a temporary guardianship and a permanent guardianship?

A temporary guardianship may be created without notice to the ward if the court has probable cause to believe that the incapacitated minor or adult person requires the immediate appointment of a guardian, without a formal doctor’s letter or hearing. There must be a hearing after notice within 10 days of the creation of the temporary guardianship. The temporary guardianship generally can not continue for more than 60 days.
 
Changes to Texas Probate Code §875, effective September 1, 2003, require a hearing in Harris County Probate Court No. 2 before a temporary guardianship can be granted.
To initiate a temporary guardianship, the following must occur:
  • A sworn application must be filed with the County Clerk.
  • The attorney for the applicant should immediately contact the guardianship coordinator of Probate Court No. 2, if the case is assigned to that Court, to schedule a hearing.
  • The attorney should provide an order setting the hearing and appointing an attorney ad litem for the alleged incapacitated person.
  • An attorney ad litem must be appointed immediately and must visit the alleged incapacitated person prior to the initiation hearing.
  • The alleged incapacitated person has the right to attend the hearing, so must be served with notice prior to the hearing.
Since service is required prior to the hearing, the applicant may expedite service by requesting service by private process server under Texas Rules of Civil Procedure, Rule 103. A motion for Rule 103 service is required; no order is required if the process server is on the Harris County District Court approved list.
 
A permanent guardianship can only be created after notice is served on the ward, an attorney ad litem is appointed and a hearing is held. The permanent guardianship continues until the Court terminates the guardianship upon the death or restoration of capacity of the ward.
 

30. What warrants the appointment of a temporary guardian?

This court generally requires the existence of a genuine emergency to create a temporary guardianship. The emergency usually will relate to the ward’s physical health or well-being, but may in some limited circumstances also involve mainly estate issues.  The court’s reticence is based on the fact that a temporary guardianship requires a bond, inventory and final accounting, which significantly increases the fees and expenses of protecting the ward.  If appropriate protection of the ward and the ward’s estate can be achieved by a less expensive means, the court would prefer it.
 

31. Who are court visitors, and how often do they visit?

Court visitors are volunteers trained and appointed by the court to visit the ward annually to check on the ward’s care and condition.
 

32. Can a duly appointed ad litem consent for placement of a proposed ward in a pending guardianship?

Ordinarily an attorney ad litem cannot consent to anything, including placement, on behalf of a ward, because the ward, lacking capacity, cannot give approval to the attorney consenting on his or her behalf.  The duly appointed and qualified guardian, not the attorney ad litem must make all decisions for the ward.
 

33. How do we initiate a guardianship?

Either hire an attorney to file an application for guardianship, or write a letter to the Court advising that a guardian is necessary.  If you write a letter, include enough information for the Court to find and interview you and the proposed ward.
 

34. What if we can’t get a doctor’s letter?

A guardian cannot be appointed if a doctor does not testify in person or in writing that the proposed ward is incapacitated.  If you cannot get the ward to go to a doctor, contact the Court staff for assistance.
 

35. What if we don’t have money to hire a lawyer?

Contact the Court staff and a list of lawyers who will perform free services will be provided to you. Harris County Guardianship Program serves as the guardian in cases in which the ward is indigent.
 

36. How long do we have to file an inventory? Can we get an extension?

Ordinarily, the inventory must be filed within thirty (30) days after the guardian has qualified by posting his or her bond and filing the oath.  The period may be extended upon written motion to the court, for good cause shown.
 

37. How long do we have to file an investment plan?

The investment plan must be filed no later than the 180th day after the date on which the guardian of the estate qualified as guardian.
 

38. How long do we have to file an allowance application?

The application for a monthly allowance for the ward must be filed no later than the 30th day after the date on which the guardian qualified as guardian.
 

39. As an attorney, how do I get compensated in a guardianship matter.

The attorney for the applicant is generally compensated by the guardian after the guardianship is established. The fees must be approved by the Court after a written application is filed. Guidelines for the application are available in the main Court office. The attorney ad litem is compensated out of the estate pursuant to an order signed at the hearing creating the guardianship. A written application for fees is ordinarily not required, because the attorney can testify on the record about his or her time.  If there is no estate, the attorney ad litem is paid by Harris County. The maximum rate the Court will approve in Harris County cases  is $150.00 per hour for attorneys.
 

40. Are there special requirements to serve as attorney ad litem in a guardianship matter?

The Probate Code requires that an attorney complete a special course prior to being appointed as an attorney ad litem in a guardianship matter. The course has been videotaped, and is available from the State Bar of Texas.  
Contested MattersTop

41. Does Probate Court No. 2 have a submission docket?

The probate courts in Harris County do not have a formal submission docket.
 

42. When are contested motions heard?

Contested ancillary motions are heard on Tuesday at 10:00 a.m.
 

43. When are hearings required?

A hearing is required if the Probate Code or other law requires a hearing.  Hearings are also required if testimony is necessary.
 

44. May an attorney appear at a hearing by telephone?

Attorneys may appear at hearings by telephone. Ordinarily witnesses may not appear by telephone, except with prior permission of the judge on good cause shown.
 

45. Do you require a hearing for a motion to substitute/withdraw as attorney?

A hearing is ordinarily not required on motions to substitute or withdraw as attorney of record in a contested case. Compliance with Rule 10, Texas Rules of Civil Procedure, is required.
 

46. Must every contested matter be set for trial?

Every contested matter will be set for trial as soon as it is brought to the Court’s attention that the matter is contested. Matters are set for trial by a scheduling conference, but may be set by the parties obtaining a trial setting from the court coordinator and completing and filing a scheduling order.
 

47. May a suit for damages for death or personal injury be brought in probate court?

A personal representative of a decedent’s estate, or the guardian of the estate of an incapacitated person may bring suit in probate court for damages for death or personal injuries.
Decedent’s EstatesTop

48. How do I probate a will?

The first step to probating a will is the filing of an application for probate with the Probate Division of the Harris County Clerk’s Office.
 

49. Do I need an attorney to probate a will?

The large majority of persons offering wills to probate use an attorney to represent them. Some persons file the application without an attorney. Such an application will not be set for a hearing in Probate Court No. 2, unless the applicant is the sole beneficiary of the will and is offering the will as a muniment of title only. An individual filing an application without an attorney to be appointed as an independent executor or administrator is, in the opinion of the court, practicing law without a license.
 

50. When are probate hearings held?

Ordinarily, probate hearings are held on Tuesday at 8:00 a.m. and Wednesday at 9:00 a.m.  If a special hearing time is required, contact the Court staff.
 

51. If I don’t call the court to set a probate hearing then whom do I call?

You may call the Court to set a hearing on an application to probate a will.
 

52. How long do we have to probate a will?

Ordinarily, an application to probate a will must be filed within four (4) years of the date of death of the decedent.  Ordinarily, letters testamentary or letters of administration cannot be authorized more than four (4) years after the date of death of the decedent.
 

53. When can we contest a will?

A contest to an application to probate a will can be filed at any time before the order is signed admitting the will to probate.  A will contest can be filed, under certain circumstances, up to two (2) years after a will is admitted to probate.
 

54. How long does an administrator have to distribute the inheritance to heirs?

An executor or administrator may be removed with notice if he or she fails to make a final distribution settlement of the estate within three years after letters have been granted to him or her.  The executor or administrator may make application to the probate court for an extension of this time upon verified application showing good cause.
 

55. How long can an estate remain open?

There is no specific time for which an estate can remain open.
 

56. What can we do to hurry up and close the estate?

You should contact the independent executor and ascertain what the status of the estate is, and when final distribution can be expected.  If you are not satisfied with the answer, you can file a request for an accounting after 15 months, or a request for accounting and distribution after two years from date of appointment of the independent executor.
 

57. Once the will is probated, do you handle the transferring of property?

Distribution of the property is not handled by the court.  The property will be distributed by the independent executor or administrator after debts of the estate have been paid and the estate tax return, if any, has been filed.
 

58. When do you require posting?

Notice is required to be posted upon the filing of an application to probate a will or for the issuance of letters of administration in a decedent’s estate.
 

59. When is the Inventory due?

It is due 90 days after the date of qualification.
 

60. Can I get an extension?

Yes, the court will grant you an extension upon your filing a written request.> If  you only need a couple of weeks the staff will give a verbal extension.
 

61.Does the Inventory have to be notarized?

Yes.  The inventory must be verified by the personal representative before a notary public.
 

62. Do I have to file an inventory, in cases in which the will is admitted to probate as a muniment of title?

An inventory is not required to be filed when a will is admitted as a muniment of title only.
 

63. Do I have to file the 181 day affidavit?

The affidavit concerning completion of the terms of the will must be filed unless the judge waives the filing in the order admitting the will to probate as a muniment of title. The judge will waive the affidavit only in cases in which there is a single beneficiary of the will.
Heirship ProceedingsTop

64. When are heirship proceedings heard?

Heirship proceedings are heard on Wednesday at 10:00 a.m.
 

65. Does this court require an Attorney Ad Litem for an heirship determination?

An attorney ad litem to represent the unknown heirs and heirs suffering disability is required in all heirship proceedings.  Although the Probate Code makes the appointment discretionary, the Court has determined that one must be appointed in each case.  In several cases, the applicant has been untruthful about the heirship, which was discovered by the attorney ad litem.
 

66. What witnesses are required in an heirship proceeding?

Two disinterested witnesses are required. Disinterested witnesses are witnesses who have no interest in the estate.
 

67. My witnesses are out of town. Do they have to come to court to testify live?

The witnesses do not have to appear live. A deposition on written questions may be taken of the out-of-town witnesses. The Rules of Civil Procedure must be followed in taking the deposition on written questions. An affidavit is not sufficient. Interrogatories cannot be used.
 

68. What if I can only find one witness in an heirship proceeding?

The Court can make a determination of heirship on the testimony of only one witness if it is impossible to find an additional witness.  The Court would prefer an interested witness, in addition to the one disinterested witness, if that is all that is available.
 

69. May I have schedule a hearing for administration at the same time as a hearing in an heirship proceeding?

Yes.
Small Estate AffidavitsTop

70. What are assets?

Assets are any property owned that has monetary value, including cash or bank accounts, vehicles, household furnishings, and real property.
 

71. What are liabilities?

Liabilities are the debts owed by the decedent at the time of his or her death.
 

72. Does the affidavit have to be signed and notarized again, when an amended small estate affidavit is filed?

Yes.  It is not an affidavit, unless it is verified and signed in the presence of a notary public. The amended affidavit takes the place of the original, and must be verified.
Open Safe Deposit BoxesTop

73. Can I take the items out of the box?

No, the bank may only distribute as ordered by the Court.  The Probate Code requires the bank to forward any will to the Clerk for filing, and allows insurance policies to be given to the person named as beneficiary in the policy. All other items in the box are inventoried and retained by the bank until an executor or administrator is appointed and qualified.
Court Policy Regarding Pro Se ApplicantsTop

Under Texas law, individuals applying for letters testamentary, letters of administration, determinations of heirship, and guardianships of the person or estate must be represented by a licensed attorney.  This rule follows from the requirement that only a licensed attorney may represent the interests of third-party individuals or entities.  The only time a pro se applicant may proceed in court is when truly representing only himself or herself.

 

 

74. What is a pro se?

            A pro se is an individual who has not retained a lawyer and appears in court to represent himself and no other person or entity.

 

75. Can I still serve as an executor, administrator, or guardian even though I’m not a lawyer?

            Yes.  One need not be a lawyer to serve as an executor, administrator, or guardian.  However, the executor, administrator, or guardian must be represented by counsel.

 

76. But I’m the only one that needs letters testamentary.  As executor, how would I be representing the interests of others?

            As executor of a decedent’s estate, you don’t represent only yourself.  An executor represents the interests of beneficiaries and creditors.  This responsibility to act for the benefit of another is known as a fiduciary relationship.  It gives rise to certain legal obligations and responsibilities that require legal expertise.  The attorney you hire represents you in your capacity as executor and assists you in representing those to whom you are responsible.

 

 

77. If I get the paperwork from a law library or the Internet, can I fill it out and file it?  Isn’t that what lawyers do?

            Lawyers don’t just fill out forms.  Lawyers (1) determine what method of probate or guardianship is appropriate in a particular situation, (2) create or adapt any necessary paperwork, and (3) advise the client about the ongoing responsibilities of a fiduciary.  Unless you are a lawyer, your creating legal pleadings while acting as a fiduciary would constitute the unauthorized practice of law.

 

78. As a pro se, what proceedings can I do on my own?

            The only proceedings that you can handle as a pro se are those in which you truly would be representing only yourself.  For example, an individual may apply to probate a will as a muniment of title when he or she is the sole beneficiary under a will and there are no debts against the estate other than those secured by liens against real estate.  This procedure can be a viable option in some situations, but not in others.  Whether a muniment of title is the correct probate procedure for a particular situation is a legal decision that is best made by a lawyer.  Note that anyone falsely swearing that the estate has no creditors -- including Medicaid estate recovery -- is subject to a perjury charge.

 

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