Probate

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Losing a loved one often creates sadness, pain and confusion, but after the mourning and celebrations of life are over, those left behind often wonder what to do next. The decedent likely owned property of some kind and had bills to pay. Hopefully, the decedent left a will with detailed instructions, but many decedents do not leave a will, detailed or otherwise. Who will pay the decedent’s bills? Who determines who gets what part of the decedent’s property? Probate provides at least part of the answer to those questions. Actually, the term,‘probate,’ refers to a large set of legal processes designed to manage the assets and liabilities left behind by a recently deceased person.

Generally, a decedent’s estate or ‘probate estate’ contains only those assets, real or personal, owned by the decedent that did not automatically go to someone else upon the decedent’s death. By that definition, the probate estate usually does not include assets with executed beneficiary designations or transfer on death provisions. For just a few examples, joint bank accounts with survivorship rights, certificates of deposit, life insurance proceeds, and investment accounts, can all pass automatically to the named beneficiaries upon the decedent’s death. This definition necessarily implies that property owned by the decedent without beneficiary designations likely will not go to the decedent’s heirs or beneficiaries without probate.

Assuming that a decedent left an estate that needs dealing with or administering, Texas law provides that an estate may be administered independently or dependently, i.e. under the direct supervision of a court. Either way, the local county court or the local Statutory Probate Court, if there is one, has original jurisdiction over the process and creates either a dependent or independent administration and appoints a personal representative to handle the decedent’s estate. This outline addresses only independent administrations and makes only little reference to non-administrative probate processes at the end.

The particular probate process depends upon whether the decedent left a valid will. Typically if the decedent left a valid will, the appropriate court will hear evidence and open an administration, and name an executor to be the decedent’s personal representative. Having a will usually simplifies the process allowing the executor to settle the estate in a relatively quick and efficient manner, but the absence of a will can complicate the administration of the estate and can result in painful and unintended outcomes. In the absence of a will, the appropriate court will set a hearing, require the person asking for the administration to notify certain parties of the hearing, appoint an attorney ad litem to represent any unknown heirs, hear evidence, determine the heirs of the decedent’s estate, open an administration, and name an administrator as personal representative.

Texas does provide other processes for dealing with a decedent’s estate, such as a probating the will as a muniment of title (effectively treating the will as a conveyance of real property) or using a small estate affidavit, please contact our experienced attorneys for more information on what option best suits your needs.

Less abbreviated outlines of the two processes described above follow:

Administration With a Will–Letters Testamentary:

The person creating a will is called a testator. In a well written and valid will, the testator identifies his or her beneficiaries, names a preferred executor to administer the estate, provides for the distribution of the testator’s property, and executes the will following particular formalities not detailed here.When the testator dies, an interested party, usually the person named as executor in the will or one of the alternates applies to the Court, the local county court or Statutory Probate Court, if there is one, to admit the Will into probate (effectively establishing the validity of the will) and to appoint the applicant as the personal representative of the estate or as the actual Executor. Until the Court signs such an order, the will has no legal effect and the named executor has no authority to dispose of a deceased person’s personal or real property. The following broadly outlines the typical steps involved in issuing Letters Testamentary:

  1. The applicant applies to the Court to open an administration of the estate and issue to the applicant Letters Testamentary, i.e. credentials to administer the estate. The applicant files the original will with the Court at this time.

  2. The Court sets a hearing and the County Clerk posts public notice of the hearing.

  3. The applicant appears before the Court and offers testimony about the circumstances of the case, validity of the Will, and whether the applicant meets the requirements to serve as Executor.

  4. The Court finds that all legal requirements are satisfied and that the Will is valid and signs an order verifying the will, appointing the applicant as Executor of the estate, and authorizing the County Clerk to issue Letters Testamentary naming the Executor of the estate.

  5. The Executor notifies all beneficiaries in the will that the will has been admitted to probate and provides the beneficiaries with a copy of the will and other information.

  6. The Executor publishes a Notice to Creditors in a paper of general circulation in the county where the deceased resided.

  7. The Executor files with the Court an inventory of all probate assets, pays any debts of the estate, and distributes the remaining property to the beneficiaries according to the Will.

 

Administration Without a Will–Letters of Administration: 

When a person dies intestate or without a will, Texas gives certain parties the authority to apply to the Court to open an administration, pay the decedent’s debts, and distribute the decedent’s remaining property to the decedent’s heirs. Typically, a surviving spouse or child makes the application, but Texas allows a creditor of the estate also to apply. But who are the decedent’s heirs? An application to administer an intestate estate normally includes a request for the Court to determine who the heirs are according to Texas law. Moreover, the Court must protect the interests of any unknown heirs and has to appoint an attorney ad litem to represent them. The absence of a will complicates the process, and the intestacy rules may require that property be distributed in a manner that the decedent would not have preferred. The process to administer the estate of an intestate decedent commonly includes the following:

  1. A party with authority to do so applies to the appropriate court for Letters of Administration and Determination of Heirship.

  2. The Court appoints an attorney ad litem to investigate and determine the legal heirs of the deceased.

  3. The applicant publishes a notice in a newspaper of general circulation in the county where the decedent lived for any potential heirs to come forward.

  4. The applicant finds two or more disinterested individuals who can testify to certain facts regarding the decedent including his or her marital history and the status of any heirs to the estate.

  5. The Court sets a hearing and the County Clerk posts public notice of the hearing.

  6. The applicant appears at a hearing before the Court and offers evidence to the court concerning the decedent, the decedent’s estate, and the decedent’s heirs supported by the two witnesses either in person or by affidavit. The attorney ad litem generally appears at the same time and provides his or her evidence regarding the identity of the heirs.

  7. The Court finds that the applicant has met all of the requirements to open an administration and that the applicant has correctly identified the heirs, signs an order appointing the applicant as Administrator of the estate, confirming the identity of the heirs, and authorizing the County Clerk to issue Letters of Administration

  8. The Administrator publishes a Notice to Creditors in a paper of general circulation in the county where the deceased resided.

  9. The Administrator files with the Court an inventory of the estate, pays the decedent’s debts, and distributes the remaining property to the heirs according to their share of the estate.

 

Muniment of Title:

A muniment of title action is a streamlined probate procedure used to transfer title of estate assets to the beneficiaries named in a deceased individual's will. The threshold for a muniment of title action is that the deceased individual had a will, and the estate does not owe any debts, with the exception of debts secured by liens on real property. The lack of debt owed enables the estate to bypass the administrative process, resulting in a faster resolution of the estate and distribution of assets. If more than four years have elapsed since the individual's death, a muniment of title action is the only available probate procedure.

Small Estate Affidavit:

When an individual dies without a will, referred to as dying intestate, it may be possible to avoid an heirship proceeding and estate administration by utilizing an alternate probate procedure known as a small estate affidavit. The laws of Texas establish who an individual's heirs are—most commonly a spouse, children, parents, and siblings—and a small estate affidavit will allow the deceased individual's property to be distributed to his or her heirs. Requirements for a small estate affidavit are:

  1. Estate assets are valued at $50,000 or less, excluding homestead real property

  2. Estate liabilities do not exceed the value of the estate assets,

  3. All heirs are required to sign the small estate affidavit, and

  4. Two disinterested witnesses are required to sign the small estate affidavit.

A small estate affidavit is available when (1) an intestate individual's estate is valued at less than$50,000, excluding the value of a homestead property, and (2)the debt owed is less than the overall value of the intestate estate. In addition to meeting the asset and debt requirements, a small estate affidavit must be signed by all of the deceased individual's heirs and two disinterested witnesses. A disinterested witness cannot be a beneficiary of the deceased individual's estate.