Ruling Tosses Common Probate Procedure

How To Keep Track of Your Estate Planning Documents from Hammerle Finley Law Firm in Lewisville, TX

And then there were two.

For years, Texas has had 3 basic types of probate for a decedent’s estate: independent administration, dependent administration, and muniment of title. The two administrations involve appointment of person or entity to serve as executor/administrator and then various required procedures. In contrast, a muniment of title requires only one hearing where the Will is admitted to probate, and no administration is opened.   

A muniment of title is available when the decedent left a Will, there are no unpaid debts other than mortgages, and there is no need for administration of an estate. It places the will in the public record, and is faster and cheaper than opening an administration.

That has made a muniment of title a very attractive choice for attorneys and beneficiaries. The only pitfall has occurred when a potential claim is later discovered, because there is not an administrator who could pursue it. However, attorneys have routinely handled that by going back in and petitioning the court to open an administration.    

Then 4 months ago the Houston Court of Appeals (1st District) brought the entire muniment of title train to a screeching halt.    

The case was In Re Jacky and the facts were simple. It seems that Mr. Squyres died leaving a valid will that divided his estate among his 5 children. Deidre, the child who had been named the independent executor, probated the will as a muniment of title. Then, 3 years later, Deidre filed a new application stating that she had discovered a claim that was due the estate, and requesting that the court appoint her as independent executor. The court did so.  

So far, nothing out of the ordinary.  

Ah, but then family tensions boiled over. Two of the children, Tamsin and Kevin, filed an objection in the probate court. They raised a rather novel theory: since the muniment of title order was more than 2 years old, it was a final order, and the court couldn’t re-open the case to appoint an executor. In other words, they argued that Deidre had made a choice to not open an administration, and it was too late to change it.  

Darned if they weren’t right, although it took the Court of Appeals 12 pages of opinion to explain why. And the appellate court still could change its mind, since the formal case citation carries a note that the opinion has not been released for publication in the permanent law reports and may be revised or withdrawn.

For now, however, Deidre won’t be able to open an independent administration and won’t be able to pursue the estate’s claim (not described in the court opinion, but apparently it was something Tamsin and Kevin opposed).   

In Re Jacky remains a cautionary tale about the dangers of opting for a shortcut procedure in probate court. Executors and beneficiaries should think carefully about the risks before opting for a muniment of title, especially since Texas has a very friendly independent administration procedure.   

We started the year with 3 good probate procedures in Texas. We’re ending it with only 2.

Hammerle Finley Law Firm. Give us a call. We can help.

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The information contained in this article is general information only and does not constitute legal advice.