Texas Probate

Probate is, at the basic level, the process of the court overseeing what happens after a person dies. Officially, someone gathers the person’s assets and distributes them to the beneficiaries. That person is responsible also for handling any debts the decedent owed by paying those out of the estate.

Texas has several ways of handling probate. In some cases, multiple options are available. But not all options are the best idea in each situation. A key point is timing: in Texas, a will must be probated within four years of a person’s death. After four years, options are limited.

You should consult with a Texas probate attorney to see what options could apply to your situation and to learn the best course of action.

Based in Houston, McCreary Law Office handles Texas probate matters for local families and estate representatives as well as representatives located out of state. In addition to representing estate administrators such as executors and personal representatives, although the office does not handle probate litigation matters, Jana is available to consult with beneficiaries to help them understand the probate process. The firm offers remote meetings and services when possible to reduce the need for clients to travel.

When Probate is Not Needed

Not all assets need to go through probate in Texas. Assets that have a beneficiary named, property that is owned as joint tenants with rights of survivorship, and other accounts that are set up as pay-on-death or transfer-on-death are examples of some of the assets that can be transferred without court supervision.

Types of Texas Probate Proceedings

Affidavit of Heirship

If the only thing to transfer is real estate (such as land and buildings), sometimes an Affidavit of Heirship can be used to transfer that property. This requires two disinterested witnesses to swear to who the family members are. The affidavit is recorded in the county records, and that transfers the property to the heirs.

Small Estate Affidavit

If the person who died had no will (meaning the person died “intestate”) and less than $75,000 of nonexempt property, a Small Estate Affidavit might be an option. A Small Estate Affidavit, though, can be used for real property only if that property was the person’s homestead. This affidavit, like the Affidavit of Heirship, must be signed by two disinterested witnesses, but it must also be signed by all of the heirs. Once it is approved by the court, it is used to distribute property to the heirs. However, not all banks or financial institutions will accept a Small Estate Affidavit. Thus, even if the estate qualifies, this is not always the best path to take. And in this situation, because there is no will, Texas laws will decide who gets any property.

Determination of Heirship

If the person who died had no will, and it is unclear who the heirs are, the court will determine who the heirs are in a formal legal proceeding. The court must appoint an attorney ad litem to investigate the family history and identify who the heirs are. This process can be prevented by having a will.

Muniment of Title

A muniment is a fancy name for a document that shows proof of ownership of property. When a will is probated as a muniment of title (a muniment of title process can happen only if the person who died had a will), the court recognizes the will and issues an order that property is to be transferred to the beneficiaries named. The court does not appoint a personal representative. Thus, no one is formally appointed to be in charge.

Probating a will as a muniment of title can be a relatively quick and smooth way to transfer property. But probating a will as a muniment of title can happen only if the estate has no debts (other than secured debts, such as a mortgage). And it is common that assets or debts are discovered later. If that happens, you would have to pay an attorney twice to accomplish what you can accomplish if you proceed with an independent administration from the beginning. Thus, it is often a better alternative to probate the will through an independent administration.

Independent Administration

In an independent administration, the court confirms the will is valid and formally appoints the executor to administer the estate. That executor, who serves as the personal representative, handles paying debts of the estate and distributing assets to the beneficiaries named in the will. In an independent administration, the executor has the authority to act on behalf of the estate without having to get court approval for each step. This keeps costs lower and allows greater flexibility for the executor.

An independent administration is an option if the person’s will authorizes it or if all of the beneficiaries or heirs agree.

Dependent Administration

A dependent administration is much like an independent administration except that the court is involved at a much higher level. The executor must still pay debts and distribute assets, but the executor will be under greater scrutiny by the court. If the person died with no will, the dependent administration will include a determination of heirship too.

FAQs About Probate