In the public mind, the term “probate” is often associated with expense, delay, suffering and, sometimes, prolonged legal disputes. While there are many probate myths and misconceptions, it is basically a court-supervised method of handling the property of a deceased individual. During probate, the court will appoint someone to be in charge of the deceased person’s financial affairs, property, assets, and debts. Outstanding debts are addressed, and the remaining property is distributed to the heirs of the deceased.
In other words, probate is a process with the purpose to prevent fraud after someone’s death. It is simply a way to freeze the estate until a judge determines the will is valid, that all relevant people have been notified, the property in the estate has been identified and appraised, the creditors and all taxes have been paid, and the assets of the estate have been distributed according to the wishes of the decedent.
Probate in Texas
Texas law recognizes three basic types of probate. These are Uncontested Probate of a Will, Contested Probate of a Will, and Muniment of Title. Beyond these, there are also other simpler ways in which the property of a deceased individual can be properly transferred.
Before exploring the types of probate, we want to express our option that if you have been named as the executor of an estate, probating a will is not something that you should try to do alone. As the executor, you have the fiduciary responsibility to make sure all estate matters are handled properly, and experienced legal counsel is essential to avoid needless mistakes and delays in the probate process.
Uncontested Probate of a Will
This is a circumstance in which no one challenges the validity of the will, the person appointed as the executor, or the percentage of the distributions that are named in the will.
Beyond the absence of a challenge, there is also the question of probate administration, either Independent Administration or Dependent Administration. An executor can request Independent Administration if the will says they can ask for this. If the will says nothing about administration, all the beneficiaries agree that Independent Administration is the proper course of action. In this case, the executor does not have to post bond and no court supervision is required for the executor to take the steps needed to settle the estate. However, the executor must still publish notice of the probate (to inform potential creditors of the probate) and file an inventory of the estate’s assets.
More information can be found here on the Independent Administration of a decedent’s estate.
Contested Probate of a Will
In contrast, Dependent Administration in Texas occurs when the estate is contested and beneficiaries do not agree on what should happen. In this situation, the Court must supervise and approve the executor’s actions.
According to Texas Probate Code, Section 93, an interested party can legally dispute a will’s validity by filing a formal lawsuit. Under the code, an individual has two years to contest a will after it has been admitted to probate.
Essentially, there are four reasons why an interested party would want to contest a will.
- Lack of testamentary capacity – This is the legal term describing a person’s legal ability to make or alter a valid will. This becomes an issue when someone claims that the testator – the person who made the will – did not understand what was happening. Examples would include the testator not understanding they were signing a will, had no comprehension of what property was being willed away, or no comprehension of who is receiving the property.
- Undue influence – The meaning here is exactly what it sounds like: someone placed influence on the testator and inappropriately influenced their decisions. Undue influence in estate planning can be very difficult to prove in court as the testator will probably not be available to appear in court and answer questions.
- Due execution – Under Texas law, specific steps and formalities must be taken, and if not followed, lack of execution can be grounds for contesting a will in Texas. An example would be the absence of a required signature on the will.
- Other noncompliance with Texas law – There are many intricacies to a will in Texas – the depth and size of the assets and the number of heirs, among others – and an experienced legal team can help you unravel the specific details of the document.
If you feel the need to contest a will in Texas, it is best to secure the services of an experienced probate attorney to guide you through the complex process of demonstrating that you have the right to sue and have a valid reason for contesting a will.
Muniment of Title
Muniment of Title provides a streamlined procedure for probating a will, and is the only means by which you can probate a will more than four years after a decedent’s death. With this process, the will is filed for probate, but the Court does not appoint an executor or administrator for the estate. Instead, once the Court signs its order establishing the will as the decedent’s true last will, a certified copy of the will and the court order can be used to transfer title in any property owned by the decedent to those listed in the will. The will and the order serve as an equivalent to a new deed to any real estate.
Other Matters Related to Wills and Probate
Small Estate Exemption
If you are handling the estate of a Texas resident and the value of the estate was $75,000 or less, you do not have to go through the probate process. It does not matter if the decedent left a will or not. What is important is the value of their estate. If the value of the estate is under the small estate limit, the estate can be distributed without a court proceeding.
Application for Administration of an Estate
Administrator of an Estate is the legal term referring to a person appointed by the Court to administer the estate of a person who died intestate (without leaving a will). This administrator will enjoy privileges similar to those of an executor, including the settling of debts, the payment of taxes and funeral expenses, and the distribution of the remaining assets.
These are issued to handle some special situation, such as changing court proceedings during the COVID-19 crisis. In the case of probate matters, it might be an emergency order to handle a pressing situation such as paying funeral expenses or opening a safety deposit box.
Affidavit of Heirship
This affidavit is a document that can be used when someone dies without a will and the estate consists mostly of real property titled in the decedent’s name. Under Texas law, the affidavit becomes evidence about the property once it has been on file for five years in the county in which the decedent’s property is located. Its legal effect is that it creates a clean chain of title transfer to the decedent’s heirs.
Family Settlement Agreement (FSA)
This document is an agreement reached by all the heirs as to how an estate should be distributed. A FSA, for example, might be used to correct the effects of a poorly written will or to resolve probate disputes. In probate matters, the Court does not have the authority to either approve or disapprove a FSA. After all parties sign the agreement and it is filed with the Court, it acts as a binding and enforceable contract.
Probate or Not?
It should be obvious that estate planning and probate are both extremely important matters, and much additional information on both can be found on our website.
It should also be noted that there are ways to avoid probate, one of those being to create a living trust. Under Texas law, you can make a living trust to avoid probate for virtually any asset you own. You need to create a trust document (similar to a will) naming someone to take over as trustee after your death. Next – and this is a crucial requirement – you must transfer ownership of your property to yourself as trustee of the trust. Once that’s done, the property will be controlled by the terms of the trust. Upon your death, your successor trustee can transfer it to beneficiaries without probate court proceedings.
However, there are many things to consider when deciding in favor of probate or not, and that is when you need the guidance of knowledgeable estate planning attorneys.
Experience When it Counts Most with Hammerle Finley Law Firm in Lewisville, TX
Since 1984, the attorneys at Hammerle Finley have assisted countless individuals with matters related to estate planning and probate, and we would like the opportunity to work with you as well. We will listen to gain an understanding of your wishes and goals, and we will be your advocate, working tirelessly to protect your rights and inheritance.
For guidance and answers to all your probate-related questions, please do not hesitate to reach out. Contact Hammerle Finley today to schedule your initial consultation and let our experts guide you through all matters related to estate planning and probate.