Texas probate law provides many different types of procedures tailored to specific situations. The most common and the one most people think of when they consider “probate” is an Independent Administration with a Will. We discuss the process of independent administration in more detail. Below you can find information about some additional types of probate:
Probate of Will as a Muniment of Title
A muniment of title is a document that provides evidence of ownership. Under Texas Estates Code Chapter 257, a court may admit a will as a muniment of title when the statutory requirements are met. The court must be satisfied that the will should be admitted and that the estate has no unpaid debts other than those secured by a lien on real estate, or find another reason that administration is unnecessary.
The application, notice, and proof must meet the applicable requirements. The court considers more than the will’s validity, including jurisdiction, venue, and the facts supporting the requested procedure. Counsel can assess those requirements before an application is filed.
If the court admits the will as a muniment of title, its order provides authority for property transfers under the statute. Timing, cost, and the steps needed to complete transfers depend on the estate and the assets involved.
Discuss the estate’s assets, debts, and transfer needs with counsel before choosing this procedure. Counsel can also explain any post-order reporting requirements and applicable court orders.
Dependent Administration
Where a party has died intestate (meaning without a Will) or in the case where no executor under a Will is capable of serving, but there is a necessity for an administration of the estate, a dependent administration may be opened. Under a dependent administration, the court appoints an administrator to handle the affairs of the estate, with greater court supervision than in an independent administration.
A dependent administrator generally must post a bond, subject to statutory exceptions and applicable court orders. Texas Estates Code § 305.101 addresses the general requirement and exceptions, including corporate fiduciaries. Counsel can explain the requirements and costs that apply to the proposed representative.
Most tasks the administrator carries out must be preapproved by the court. For instance, the administrator must apply to the court for authority to sell property of the estate. Upon approval of the court, the administrator must conduct the sale in accordance with the court’s order. The property is sold subject to the court’s approval, and the administrator must file a report of the sale with the court.
Upon receipt of the report, the court reviews it and will approve the sale if it complies with the order of sale, and may also enter an order increasing the bond required of the administrator. The court enters a decree approving the sale and authorizing the administrator to convey the property to the buyer. Each step costs additional money that comes out of the estate.
Additionally, the administrator cannot distribute assets to the heirs until the court approves the administrator’s accounting for all the assets and approves the distribution.
Determination of Heirship
A court can judicially determine and issue an order identifying the heirs of the decedent. It may seem like it should be obvious who the heirs of a deceased person are. However, at times a person’s family tree is complicated, and many times a third party, such as a bank, will require a court order identifying the heirs before the third party will turn over property or money to the heirs.
When the decedent did not leave any unpaid debts, and there is no need for an administrator to collect and distribute the assets of the deceased, a judicial determination of heirship can be a standalone proceeding. Often it is part of a dependent administration (discussed above), or as part of an independent administration when there is a Will that does not cover all of the property of a deceased person.
While the determination of heirship can be a relatively straightforward process, it generally requires the court to appoint an attorney to investigate whether there are any other heirs that have not come forward. This is an additional cost that comes out of the estate.
Small Estate Affidavit
A small estate affidavit may be available when a person dies without a will and the conditions in Texas Estates Code Chapter 205 are met. Among other requirements, at least 30 days must have elapsed, no application for a personal representative may be pending or granted, and qualifying assets must not exceed $75,000, excluding homestead and exempt property. The statute also imposes a liabilities test and requires judicial approval.
Special restrictions apply to real property and the homestead. The property interests and surviving family members must be assessed before relying on an affidavit to transfer title; this procedure is not suitable for every estate.
The affidavit must identify the required assets, liabilities, family history, and distributees and include the required sworn signatures. Counsel can help determine whether the statutory conditions and the court’s filing requirements are satisfied, and what recording or delivery is needed if the affidavit is approved.
Court approval is required. Consider the estate’s circumstances and available alternatives with counsel before choosing this procedure.
At Dawson Springman we can help you decide what is the right type of probate for your situation. Schedule a consultation to learn how we can help you with this complicated process. We have offices conveniently located in Fort Worth and Midland. Call us at 817-870-1212 or view our contact options.