Types of Probate

In Texas, there are two types of probate that allow for estate administration. They are: Independent Administration or Dependent Administration. Given the appropriate circumstances, probate may also be accomplished through a Small Estate Affidavit or a Muniment of Title; however, neither of these types of probate allow for opening an administration or issuing Letters Testamentary or Letters of Administration. Although they are part of the decedent’s overall estate, it is important to remember that non-probate assets, such as beneficiary-designated accounts, do not generally fall under the probate umbrella. Probate courts only deal with probate assets. The attorneys at Garg & Associates are here to guide you through probate, a process that is much less burdensome and expensive in Texas than it is in many other states.

Probate of a Will as a Muniment of Title

Probating a will as a muniment of title is an alternative to a traditional probate proceeding. That is, instead of applying for letters testamentary and undertaking a full probate procedure, a person with a direct interest in the deceased person’s estate can submit an application to probate the will as a muniment of title. This procedure is used primarily in the following situations: when a will doesn’t name an executor; when the named executor is dead, unwilling to serve, or unqualified to serve as executor; when the beneficiaries of the will didn’t submit the will for probate within 4 years of the decedent’s death; or when all that is truly needed is the transfer of real estate and/or personal property from the decedent’s estate, and there is no other real need to manage or administer the estate.

As the name of the procedure implies, the deceased person must have left a will. Secondly, there must be no unpaid debts owing by the decedent’s estate, except for liens on real estate.

To proceed with a muniment of title, a direct beneficiary of the will needs to submit a specific application to the probate court, and attach the original will. The court must be satisfied that the will is admissible to probate, that there are no debts other than a mortgage, and there is no other necessity for administration of the estate. A hearing will be required. If the court approves the application, it will issue an Order Admitting Will As A Muniment of Title.

The court’s order can be presented to persons owing money to the estate or having custody of estate property, and the property must be handed over to the beneficiaries in accordance with the terms of the will. Within 180 days after the will is admitted, you must also file an affidavit with the probate clerk stating that the terms of the decedent’s will have been fulfilled.

A muniment of title proceeding can be a quick and cost-effective way to settle a loved one’s estate. The attorneys at Garg & Associates are experienced in this, and many other, areas of probate practice and are here to guide you through the procedure that best fits your needs.

Small Estate Affidavit

A “small estate affidavit” is an alternative to a formal probate proceeding. It is most often used when a person dies without leaving a valid will. If an estate qualifies for the use of a small estate affidavit, then the heirs of the deceased person can receive the assets of the decedent’s estate without resorting to an heirship proceeding in the probate court.

The affidavit can be used when (1) no one has petitioned for or been granted appointment as a personal representative of the estate; (2) thirty days have passed since the death of the person in question; and (3) the value of the entire estate, not including the deceased person’s homestead and certain other exempt property, does not exceed $50,000.00.

The affidavit lists all of the assets and liabilities of the decedent, as well as to whom his or her property should be distributed (i.e., identifies the decedent’s heirs). Once it is signed by the affiant and witnesses, and is notarized, it should be filed with the clerk of the probate court. Once the court approves the affidavit, it will be recorded as an official public record by the clerk of the county.

The heirs can then take a certified copy of the affidavit to persons owing money to the estate or having custody of estate property, and the property must be handed over to the heirs. When recorded with the deed records of the county where the decedent’s real property is located, the small estate affidavit is also used to transfer title to the decedent’s homestead.

While executing a valid will during your lifetime is the best way to avoid the need for such a procedure, the small estate affidavit does provide a relatively quick and cost-effective way to transfer the assets of a deceased person who did not leave a substantial estate. The estate planning and probate attorneys at Smith & Garg are here to help you prepare, execute and file a small estate affidavit if the need arises and the estate qualifies.

Independent Administration

It is also important to know that all property the testator owned, or had an interest in, may not pass through his or her Will. Only probate assets pass through Wills. Non-probate assets pass through beneficiary designations or can pass through a Trust. Examples of non-probate assets are insurance policies and beneficiary-designated accounts at financial institutions. The attorneys at Garg & Associates will discuss this very important issue with you in order to make certain that all of your property passes as you want it to, whether by Will, Trust or beneficiary designation.

What exactly are probate assets? Probate is the “judicial procedure by which a testamentary document [a Will] is established to be a valid will.” Probate assets are assets that are specifically mentioned in a Will like personal or real property that are left to a specific person or entity and which are administered by the deceased’s personal representative, or more commonly known as an executor. While the probate process in Texas is relatively straightforward and can be inexpensive, if you can keep from involving the court, you should do so. By creating a Trust and leaving all assets to it through a Will, you are able to likely avoid having to probate the Will.

The probate process is relatively straightforward in Texas. To begin the probate process if there was a valid Will, the Will needs to be filed with the court along with an Application for Probate of Will and Issuance of Letters Testamentary. After the initial filing, the clerk will issue a citation and publish a notice that the Application has been filed. After the expiration of ten days, a hearing can be set to establish the fact of the testator’s death. If the Will is a “self-proved” Will, that is it has an affidavit attached that proves that the Will was executed in accordance with the law, and then only the executor needs to offer testimony regarding the Will. After the hearing, the qualified executor takes the Oath of Executor. Once the executor is qualified, the court then will issue Letters Testamentary, which give third parties notice of the executor’s right to act on behalf of the estate and that he or she has been approved by the court.

Before the expiration of 90 days after the executor has been approved by the court, he or she must file an Inventory, Appraisement and List of Claims with the court. This document lists the estate assets and all claims against the estate. If creditors make any claims on the estate, the executor must respond by either accepting or rejecting the claim within 30 days of the claim date. The executor is also responsible for filing a final tax return for the year of death. This return must be filed by April 15th of the year after the testator’s death.

Within a short time after the Letters Testamentary are issued, the executor is required to publish a Notice to Creditors, which puts creditors of the estate notice of the death of the testator. Within four months of the issuance of Letters Testamentary, the executor must give further notice to creditors who have recorded claims (mortgages for example) and other claims against the estate.

The executor is required to disburse the testator’s property as set forth in the Will to the designated beneficiaries. Additionally, the executor must file all appropriate documents transferring title to property such as real estate or personal property like cars, boats, motor homes, etc. Once all the claims have been paid and assets distributed, the executor asks the court to discharge him or her from further duty or obligation and the estate is closed. This process can take only a few months if there are no contests and the estate is relatively simple.

The preceding outline of an administration of a typical estate is merely general information on probate in Texas and has been simplified for purposes of this article. It is not intended as legal advice. Since each estate is likely different, at least in some respect, than other estates, it is advisable to obtain legal counsel prior to initiating the probate process. The probate lawyers at Garg & Associates are able to guide you through the process and avoid common pitfalls associated with the Texas probate process.

We invite you to contact us for a consultation. Call Garg & Associates, PC at 281-362-2865 or complete our contact form.

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Garg & Associates, PC | 21 Waterway Avenue, Suite 300 | The Woodlands, Texas 77380 Please call 281-362-2865 | Fax: 866-743-4506
Serving The Woodlands, Spring, Houston, Conroe, Kingwood, Tomball, Cypress, Huntsville, Cleveland, Stafford, Montgomery County, Harris County, West Oaks, Memorial, Sugar
Land, River Oaks, Alief, Stafford, Missouri City, and Southwest Houston Texas.