DIFFERENT FACES OF PROBATE
By: James M. Bright
Attorney at Law
The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
The old saying, “there’s more than one way to skin a cat,” was never more true than when attempting to determine the best way to settle an estate through probate.
The one clear truth is that it is always faster and more economical to take advantage of rights under Texas law to utilize independent administration.
The following is intended as a partial list of the most common probate procedures which may be utilized in Texas. Each of these procedures is triggered by a slightly different fact situation than each other procedure. One goal of your probate attorney is to determine which probate procedures have been triggered by your particular fact situation.
If a person’s Will provides for appointment of an “independent”
administrator or executor and states that “no other action is to be had in the
county court in relation to the settlement of the estate than the probating and recording of their Will and the return of an inventory, appraisement and list of claims of the estate,” then the estate can be administered without judicial supervision and, therefore, without added costs at time of probate.
If the person’s Will does not have the above-referenced language, it is still possible to have an independent administration if all distributees of the document agree on the advisability of acting independently. Your attorney can be of great assistance in memorializing this agreement.
Muniment of Title
If a deceased person leaves a Will, but there are no unpaid debts except those which have a secured interest in real property, then there may be no need for administration. Under these circumstances, the Will may be admitted to probate as a Muniment of Title which passes title to real property to the heir in the shortest time possible. No letters testamentary or letters of administration are issued under a Muniment of Title.
Proceedings to Determine Heirship
This procedure is used when a person dies in Texas without having a Will. The Texas statutes of intestate succession determine the identities of the rightful heirs and determine what portion of the community property passes to that heir as well as what portion of separate property passes to that heir. All heirs and beneficiaries must either be served with citation or enter an appearance through answer or a waiver.
It is possible to combine this proceeding to determine heirship with a proceeding which determines that no necessity exists for an administration or, if applicable, it may be combined with a request for appointment of an administrator to gather and distribute the assets.
It is also important to note that if all of the heirs agree, then the administration may be made independent and, therefore, far less expensive and time consuming than an administration which must seek court approval for each act done on behalf of the estate.
Small Estate Affidavit
In order to be eligible for treatment as a “small estate” under Sections 137 and 138 of the Texas Probate Code, the estate must meet certain criteria. These criteria are:
(1) the decedent’s non-exempt assets must be greater in value than the known liabilities; (2) the gross value of all of the decedent’s property, not including exempt property and a homestead, must not exceed $50,000.00.
This procedure is not usually recommended if a Will exists.
This entire procedure is done via affidavit of witnesses who are familiar with the family history of the decedent and can swear to facts regarding the identity of the heirs.
Administration with Will Annexed
This is the procedure utilized when there is a Will, but the Will fails to name an executor, the executor predeceased the decedent or the named executor is unwilling or unable to serve.
Persons who are interested in the estate may ask for Administration with Will Annexed and petition the Court to appoint an administrator. There is an order of appointment which gives preference to those persons who were more closely related to the decedent.
The Administration with Will Annexed, like some of the other procedures previously discussed, may be made “independent” if the distributees of the estate can agree on the advisability of acting independently.
If your Will does not provide for independent administration or if your heirs do not agree regarding the freedom to be given an administrator to act without court supervision, your estate will become one utilizing dependent administration.
The subject of “dependent administration” is far too complex to attempt coverage in the limited space provided, but let it suffice to say that it is far more difficult and far more expensive to administer an estate which cannot rely upon independent powers of administration.
You are encouraged to discuss the virtues of “independent” administration with your attorney at the time that your Will is drafted so that your estate does not inadvertently get caught up in “dependent” administration.
Each of the above-referenced “faces of probate” is a tool to be utilized to meet the goal of settling an estate with the least possible time, effort or expense, but the right tool must be selected and properly used.
The bottom line ends up, as usual, being that probate utilizing independent administration is a relatively simple and relatively inexpensive procedure, but you will need the services of an attorney experienced in probate law and procedures to guide you through the process.
James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street
in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see- www.houstontxprobate.com