Texas offers numerous different methods of administering an estate, depending on size and complexity of the estate.
What is Probate?
Probate is the court procedure by which a will is proved to be valid or invalid. Creditors of the estate have the opportunity to file claims against the estate and receive payment of those claims. After the administration fees and creditor claims are paid, the assets of the estate are distributed.
Probate of a Will with an Independent Executor
This procedure can be used when a person dies with a valid will appointing someone as “independent executor” to serve “without bond”, and stating that “no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, appraisement and list of claims of the estate.”
The Will generally has to be offered for probate within four years to receive letters. An executor is usually designated in the Will to fulfill the duties of administering the estate.
Determination of Heirship Proceeding
If the decedent has passed away without leaving a will, it may be necessary for the court to determine who may be a rightful beneficiary. Texas law proscribes how property will be devised in case of intestacy and will depend on the facts of each individual estate.
A proceeding to determine heirship is used where a person who owns real or personal property in Texas dies without a will, and there has been no administration of the estate. This is a good procedure to clean up land titles where there is nothing else to be done in the estate. It is not suitable where someone must have the authority to collect the assets of the deceased, pay bills and distribute property among the heirs.
The end result of this process is to make the rightful heirs the (joint) owners of the deceased’s property.
Probate of Will as Muniment of Title
Probate of a will as a muniment of title is an abbreviated procedure found in Texas to transfer property left by a will, without going through a more involved probate process. With this procedure, the will is probated, but the court does not appoint an executor or administrator, and there is no administration of the estate. A certified copy of the court’s order with a certified copy of the will attached is simply used as proof of title.
This procedure can be used when a person leaves a will, and leaves no debts which are not secured by real estate. This procedure is not suitable where someone must administer the estate, i.e. to gather assets, pay bills and distribute proceeds to those who inherit.
An advantage of this procedure is that the estate is vested in the beneficiaries in the shortest possible time. A possible disadvantage of this procedure is that if there are corporate securities and similar investments, sometimes out of state transfer agents do not understand this simplified Texas procedure, and we can have difficulty getting them to make the required transfers. If we know in advance that there are corporate securities in the estate, it is probably a good idea not to use this procedure if there is a viable alternative.