The Brannon Law Firm, PLLC

While probate may appear intimidating and daunting, the good news is that Texas has one of the best probate systems in the country. Texas has a streamlined probate process that permits independent administrations, which are less restrictive. While many other states require court-supervised administrations that are burdensome and expensive, Texas only requires court-supervision in limited situations. The probate process is usually only difficult and expensive in situations involving a contested will, no will at all, or when there are other circumstances causing complications, most of which can be avoided by having a properly drafted and executed will. 

What is Probate?

A will is not legally enforceable until it is probated. Probate is the legal process by which assets in a decedent’s (the deceased person) name are transferred to the intended beneficiaries or heirs. The process involves proving to the court that a person is dead, that the will being offered is valid, that debts, taxes, and expenses of the decedent will be paid, and that the remaining assets will be distributed to the rightful heirs or beneficiaries. This involves filing an Application to Probate the Will, having a hearing before a judge, and certain court requirements thereafter. The court will name an executor of the estate – this is typically designated in the will – and that person will be responsible for ensuring the estate is handled appropriately.

A will must be offered for probate within four years of the date of death of the decedent, with very strict exceptions. However, it is almost always a good idea to probate the will earlier rather than later. One or more parties can contest a will on the grounds that the testator (creator of the will) did not have the capacity to execute it or that undue influence was used on the testator to induce the execution of the will.

A will must be probated in the county where the deceased resided, if he/she had a domicile or fixed place of residence in Texas (Texas Estates Code section 33.001). If the deceased person had no such domicile or fixed place of residence but died in Texas, then probate of his/her will would be appropriate in the county where the decedent’s principal property is located or in the county where they died.

Filing a Will as a Muniment of Title

Texas has an alternate procedure for probating a will as muniment of title in which the decedent’s will is filed for probate and the court recognizes it but does not appoint an executor. Essentially, the will speaks for itself as proof to transfer title to the named beneficiaries. The admitted will along with the court order approving it can be used to transfer title as opposed to an executor needing to presenting letters testamentary.  Filing a will as a muniment of title is only appropriate if the only asset to transfer is real estate and there are no unpaid debts owed by the estate except for real estate liens. If there are other assets other than real estate, some financial institutions will accept muniment of title to transfer title on accounts but it is important to confirm this before initiating this type of proceeding.  If a financial institution insists on only dealing with an executor who can present letters testamentary, then the estate will require administration where an executor is appointed.

What if a Will Cannot Be Found?

If your loved one has passed and either did not create a will or the will cannot be found, you may need to file an application for the probate of the estate and ask for an heirship determination. The Texas Descent and Distribution Chart shows how estates are distributed according to the laws of Texas when someone dies intestate (or without a will). This type of probate procedure can be more time consuming and expensive, especially if the decedent had children from multiple marriages, in situations where heirs do not get along, or if heirs cannot be located. In limited circumstances, you may be able to file a Small Estate Affidavit to transfer property if you meet certain requirements. If the assets in question involve real property, an Affidavit of Heirship can be used to transfer the interest in real property to the heirs.

Asset Distribution

Many family members may wonder when and how estate assets will be distributed to the designated beneficiaries. The Texas Estates Code allows twelve months to pass from the time of the original grant of letters testamentary before any distributee may petition the court for distribution of the entire estate. However, an heir, distributee, or the executor may request partial distribution of any portion of the estate any time after the inventory has been filed and approved by the court.

There are typically two broad categories of different types of assets in an estate – probate assets and non-probate assets. Probate assets are assets that are still in the decedent’s name at the time of their death. The decedent’s probated will controls how these assets will be distributed. In the case of a person who died intestate (without a will), assets will be distributed according to Texas descent and distribution laws. Non-probate assets are assets that pass automatically upon a decedent’s death by beneficiary designation, Transfer on Death Accounts (TOD), Payable on Death Accounts (POD), or rights of survivorship. IRAs, life insurance accounts, and joint accounts are usually set up this way.

Can My Family Avoid Probate?

If you would like your family to avoid the lengthy probate process, do not have any assets in your name at the time of your death. This can be accomplished by having all of your assets transferred into one or more trusts prior to your death or having all your accounts set up to pass automatically upon your death by beneficiary designation, payable on death accounts, Transfer on Death Deeds, and joint accounts with rights of survivorship. It is important to consult with an attorney before making the decision to set up your estate in a way that avoids probate. 

Experienced Probate and Estate Administration Attorneys

Always consult an attorney before handling the probate process of a family member on your own. The probate process is not a one-size-fits-all experience, as each family’s circumstances are unique.  Our knowledgeable probate and estate planning attorney can help you and your family through this complicated process and ensure that your final wishes are respected. Contact us today for a consultation.