Types of Probate
Texas probate law provides many different types of procedures tailored to specific situations. The most common and the one most people think of when they consider "probate" is an Independent Administration with a Will. We discuss the process of independent administration in more detail here. Below you can find information about some additional types of probate:
Probate of Will as a Muniment of Title
Probating a Will as a muniment of title is a simplified process that is used when a person dies with a valid will but has no debts, other than those secured by real property, or those debts have been paid off by the time the probate is filed. Since there are no debts, there is no need for an "administration," so the only issue is whether there is a valid will. A "muniment" is an old-fashioned word that means a document that provides evidence of ownership. When probating a Will as a muniment of title, an application for probate is filed. After the sheriff posts the required notice, the court holds a hearing. At the hearing, the court examines the Will and hears testimony from the applicant for probate identifying the Will and testifying that there are no debts of the estate. The court then enters an order admitting the Will to probate as a muniment of title. The order gives the will beneficiaries title to the property of the deceased person. This is a straightforward process that can be accomplished in a relatively short time and relatively inexpensively.
Where a party has died intestate or in the case where no executor under a will is capable of serving, but there is a necessity for an administration of the estate, a dependent administration may be opened. Under a dependent administration, the court appoints an administrator to handle the affairs of the estate, but, in contrast to an executor, a dependent administrator must have court approval for most actions. In addition, the dependent administrator must post a bond to make sure that he or she deals properly with the estate. This costs additional money, and it is sometimes a problem if none of the heirs have sufficient credit to obtain a bond. In such cases, the court often appoints a local attorney as the administrator who then charges his fee against the deceased's estate.
An administrator of an estate may sell property of the decedent upon an order of the court. The administrator must apply to the court for authority for the sale. Upon approval of the court, the administrator must conduct the sale in accordance with the court's order. The property is sold subject to the court's approval, and the administrator must file a report of the sale with the court. Upon receipt of the report, the court reviews it and will approve the sale if it complies with the order of sale, and may also enter an order increasing the bond required of the administrator. The court enters a decree approving the sale and authorizing the administrator to convey the property to the buyer. Each step costs additional money that comes out of the estate.
A court can judicially determine and decree the persons who are heirs of the decedent. It may seem like it should be obvious who the heirs of a deceased person are. However, at times a person's family tree is complicated, and sometimes a third party will require a court order identifying the heirs before the third party will turn over property or money to the heirs. When the decedent did not leave any unpaid debts, and there is no need for an administrator to collect and distribute the assets of the deceased, a judicial determination of heirship can be a standalone proceeding. Often it is part of a dependent administration (discussed above), or as part of an independent administration when there is a will that does not cover all of the property of a deceased person. While the determination of heirship can be a relatively straightforward process, it generally requires the court to appoint an attorney to investigate whether there are any other heirs that have not come forward. This is an additional cost that comes out of the estate.
The Estates Code provides for a summary proceeding that allows for, in theory, a quick, simple, passage of title for small estates. It only applies to persons who die without a will. If the deceased person had a will, then this procedure can't be used. The procedure provides for the collection and disposition of an estate valued less than $75,000, not including a homestead and certain exempt property. The only real property that can pass under this procedure is a homestead as long as the homestead is passing to a surviving spouse or to surviving minor children. If the deceased person has no surviving spouse or surviving minor children, a small estate affidavit cannot be used to transfer title to a homestead either.
An affidavit is filed with the probate court, identifying the assets and liabilities of the estate and the distributees of the estate along with an affidavit by two disinterested persons that all of the distributees have legal capacity. The affidavit is examined by the judge. If the judge is satisfied that all of the conditions are met, the judge may approve the affidavit. If approved, a certified copy of the small estate affidavit is filed in the real property records and delivered to each distributee. I emphasize the "may approve" language because since judges are not required to approve the affidavit, it is common for different judges to impose their own requirements that go beyond the statute. For this reason, many probate attorneys avoid small estate affidavits, if at all possible.