GENERAL PROBATE INQUIRIES
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 type of probate procedure utilized to settle an estate depends upon the particular circumstances of that estate.
The first question to ask is “Was there a will?” If the answer is “no,” then you will be limited to some of the methods outlined below under the section “No Will.” If the answer is “yes,” then we must look to the will itself for instruction as set forth in the following.
“YES, there is a Will”
- Is the will wholly in the handwriting of the testator or is it either typed or written by another person? If it is handwritten, two additional witnesses must testify in Court regarding the handwriting of the testator. If it is typed or prepared by another person, it must be properly witnessed to be eligible to be admitted into probate.
- Does it name a person or entity to serve as an executor or executrix? If no executor or executrix is appointed, the original application may ask that an administrator be appointed. (Many times this is the same person who is submitting the will for probate.)
- If the will names an executor or executrix, does it direct that he/she serve independently and/or without bond? Warning: Many so-called, internet wills do not provide for independent administration. Independent administration is an advantage offered to Texas residents and is sometimes not included in “internet catch all” wills.
- If the will fails to appoint an independent executor or administrator, are all of the heirs willing to enter into an agreement to allow independent administration? If they are, the process becomes greatly simplified and much more cost effective. If they are not, the estate may be forced into the position of being a “dependent administration” requiring much more Court involvement and subsequently a much greater cost.
- Has the will been witnessed? If not and if it is not fully in the handwriting of the decedent, the attempted testament will likely not be admitted to probate and the deceased will likely have died intestate.
- Is a self-proving affidavit attached to the Will? This is a document that is intended to prove the authenticity of the will being offered for probate without additional fact witnesses being called before the Court. If the answer is no, then depending upon exact requirements, it is probable that at least one of the witnesses who signed the will may be called to testify. If the will was witnessed but no witnesses are available to testify, other procedures may be available, but the ones utilized will depend to some extent upon the particular Court which is hearing the application.
- If it has been more than four years since the death of the testator, can the will still be probated? Yes, but it would normally be admitted only as a “muniment of title.” This probate procedure is sufficient to show evidence of bare title, but does not allow the freedom to deal with the property in the same manner as would the decedent, but for his/her death.. There are steps which may be taken to open an administration after four years, but should be discussed in detail with your attorney to determine if the particular fact scenario will support an administration which reaches beyond the normal four year limitation period.
No Will
- Laws of intestate succession will govern how property passes in the event that no will exists. You may look at www.houstontxprobate.com and click on the tab “If no will” for a description of how property passes under Texas statutes.
- If there is no will and the estate (exclusive of homestead) totals less than $50,000 and the debts are not disproportionably large, the estate may qualify for small estate affidavit treatment which can be very straightforward and relatively inexpensive. A small estate affidavit sets out family history and property owned. It is reviewed and signed by the Court and will provide a basis to pass title to real or personal property.
- If the estate does not qualify for small estate status or if there is a need for administration, the probable probate approach will be an “Application to Declare Heirship.” Typically, this will require a showing to the Court regarding the identity of all heirs (under intestate succession) and a showing that additional heirs do not exist. It will be essential that an attorney appointed by the Court determine the identity and location, if any, of any unknown heirs.
- If the heirs are not going to be required to deal with particular persons or entities who require an administration to disburse assets or to recognize titles, an heirship proceeding without administration may be requested.
- If an administration is needed, the same type of agreements between heirs as was discussed above can be used to give the chosen administrator the ability to act independently of Court supervision.
Unfortunately, the persons who are left to sort through a decedent’s property issues are not always the same ones who were in a position to exercise prudent judgment before death in deciding how property should pass. If you find yourself in the position of being the one who is to carry out the wishes of a deceased loved one, it is almost certain that an attorney of your choosing can ease the journey through probate by knowing which approaches are most time and cost effective.
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