Probate Transactions

PROBATE


The legal process of administering the estate of a deceased person by resolving all claims and disbursing that person’s property under a VALID will.

ESTATE

The net worth of an individual at any point in time. It is the sum of a one’s assets – legal rights, interests and entitlements to property of any kind – less all liabilities at that time.

TYPES OF PROBATE:

  • Testate Administration – decedent died with a will
  • Independent Intestate Administration – decedent died without a will
  • Dependent Intestate Administration – decedent died without a will
  • Probate of Will as Muniment of Title – decedent died with a will
The type of administration that is needed will affect how simple or complex the probate process is going to be.

When someone dies and leaves a will (Testate Administration), the Probate Process is as follows:

  1. File an application for probate, along with the Will in the Texas Probate Court in the county in which the decedent resided.
    1. Once the application has been filed, Texas law requires a 2 week waiting period before a hearing can be held on the probate application.
    2. During the 2 week waiting period the County Clerk posts notice at the courthouse that an application for probate has been filed. The posting serves as notice to anyone who may have an interest in the estate.
  2. The hearing will then be heard in front of a judge. In most cases, the Judge will recognize that the decedent has died, that the Court has jurisdiction, that the Will is valid and that the executor is qualified to serve.
  3. Once the Judge approves the Application for Probate, the executor can receive Letters Testamentary. The Letters Testamentary give the executor the authority to act on behalf of the decedent’s estate.
    1. Most often, the executor will then open up a bank account and obtain a Tax ID.
    2. The executor will then have the obligation of identifying and collecting the estate’s assets, paying the debts of the estate, paying taxes and collecting debts owed the estate.
  4. Within one month from the date the executor is determined to be qualified to serve, a public notice must be published in a local newspaper. This acts to serve as a notice to creditors of the estate and afford them the opportunity to make a claim against the estate.
    1. This is why your mailbox gets filled with unwanted “SPAM” mail and casual “stop bys” from investors looking to buy the home.
    2. At this point, the executor can put any real property up for sale.
  5. Within 90 days after the executor is qualified, an Inventory, Appraisement and List of Claims must be filed with the County Clerk. This is essentially a list of the assets of the estate and their values.
  6. After the debts and expenses of the estate are paid, the executor shall have the obligation of distributing the estate assets to the beneficiaries as directed in the Will.
    1. If this is a taxable estate, within 9 months from the date of death any necessary tax returns should be filed.
If a decedent dies without a will, the Court is going to be required to make a judicial determination of the heirs of the estate and the proportions of the estate to which each heir is entitled.

  • Under Texas law, when the decedent died without a will, the default rule requires a Dependent Intestate Administration. In a Dependent Intestate Administration an administrator is appointed instead of an executor. The administrator is required to seek Court approval for each step of the probate process. Because of the additional procedures and complexity involved with a Dependent Intestate Administration it has higher administrative and legal costs.
  • An alternative to a Dependent Intestate Administration when a decedent dies without a will is to create an Independent Intestate Administration. If all of the heirs of an estate agree, the Court can appoint an independent administrator. Similarly to independent executors that are appointed in a will, an independent administrator appointed by the Court has minimal court supervision.
An Independent Intestate Administration is generally preferred to a Dependent Intestate Administration.

The probate of a will as a Muniment of Title is a type of administration used when probating a will more than four years after the date of decedent’s death.

  • It is also sometimes used when the only assets that need to be distributed to the heirs are real estate.
  • When probating a will as a Muniment of Title, the will is recognized as valid, but no executor or administrator is appointed. Once the Court approves the will and signs an order, the will and order can be used similarly to a deed and may be used to transfer real property to the heirs.