(This is the first in a series regarding probate procedures in Texas)
Going through probate is never convenient. For many families it is the first time that they hire an attorney. Add to that the timing, which often comes amid grieving the dearly departed, and the archaic court procedures, and it is no wonder that probate falls somewhere below limb amputation on the pleasure scale.
The most common probate procedures are Probate of Will as Muniment of Title, Probate of Will as an Independent Administration, Proceedings to Determine Heirship, and Small Estate Affidavit. This column will explain the first common procedure: Muniment of Title.
What is Muniment of Title?
A Muniment of Title proceeding is when a court admits a will to probate solely to establish title to personal and real property. As you have probably guessed, you need the following ingredients: a valid written will, an application filed with the court, a court hearing with witness testimony, and a court order.
Ahh, but there is more. You can only qualify for a Muniment of Title if there is no need for an administration of the estate. That means the decedent died leaving no debts other than a mortgage. If there are any other types of debts, such as a credit card balance or a hospital bill, then you cannot do a Muniment of Title. It also means that there must be no other necessity for administration, such as dealing with a recalcitrant stock transfer agent or insurance company, asserting, or defending a lawsuit, or filing an inventory to establish a step-up in basis for the IRS.
What is a MERP Claim?
Then there is MERP. A Muniment of Title is not available if the deceased had received Medicaid benefits any time after March 1, 2005. That is because the State has a right to recover from the deceased’s estate all the monies paid for Medicaid benefits. This is known as a MERP claim and is the bane of probate attorneys everywhere.
Assuming there are no disqualifying debts or claims, then after a hearing the Judge signs an order that constitutes legal authority for any third party holding an asset to transfer that asset to the person described in the will as being entitled to receive the asset. Or a bit more plainly, if the will states “I leave my china to my daughter Sally” then whoever has the china can safely give it to the daughter Sally.
That works great when the will is well-written and unambiguous. Some wills, however, are anything but clear. A common issue is where the will uses imprecise language, such as leaving everything to siblings but not identifying them by name. For these wills yet another court action is necessary: a suit for declaratory relief or for reformation or modification. This type of suit asks the court to clear up ambiguities, so everyone knows who is getting what.
When Should You Submit a Muniment of Title?
When should an application for Muniment of Title be filed? Within 4 years after the decedent’s death. If it is filed after that time, then the applicant must have a good explanation for the delay and has the additional post-stirrer obligation to notify all of the decedent’s intestate heirs.
Learn more in the remainder of our probate series:
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Virginia Hammerle is an attorney with Hammerle Finley Law Firm whose practice includes probate law, estate planning and contested litigation. To receive her newsletter contact her at email@example.com.