Probate Of A Will
When a decedent passes away, their estate – which consists of all the assets and property they owned – needs to be distributed according to their wishes as outlined in their will. In Texas, however, a will does not become effective until it is admitted to probate. Before a will can be admitted to probate, it must first go through the probate process to ensure that it is a valid legal document.
The probate process is initiated by filing an application to probate the will in the county court, county court at law, or probate court in the county in which the decedent lived at the time of their death. The court then verifies the authenticity of the will and ensures that it meets the requirements to make a valid will as set forth in the Texas Estates Code; for example, that it be signed by the person making the will and two or more subscribing witnesses.
A) Probate of a will with estate administration
Most estates will require the appointment of an executor to administer the decedent’s estate. In estates requiring administration, after the court admits the will to probate, it will then appoint an executor – ordinarily, the person identified as such in the will – to carry out the decedent’s wishes.
Once the executor is appointed, they will be responsible for:
- Providing notice. Executors must notify beneficiaries named in the will, as well as secured and unsecured creditors, of the probate proceedings.
- Identifying, gathering, and protecting assets. The executor must locate and take possession of the decedent’s assets. They are responsible for protecting these assets during the probate process.
- Filing an Inventory, Appraisement, and List of Claims. The executor is required to file an inventory, appraisement, and list of claims with the probate court detailing the decedent’s assets, their fair market value, and any outstanding debts or claims owing to the estate.
- Paying debts, claims, and expenses. Executors must review and settle the decedent’s debts, such as funeral costs, credit card balances, or medical expenses. They are also responsible for paying expenses and attorney’s fees related to the administration of the estate.
- Filing tax returns and paying taxes. Executors must prepare and file the decedent’s final income tax return, as well as any required estate tax returns. They must also pay any taxes due from the estate’s funds.
- Managing the estate. Executors may need to manage the estate’s assets, such as real estate or investment accounts, during the probate process. The executor may be required to sell assets of the estate under some circumstances.
- Distributing assets to beneficiaries. Once debts, taxes, and expenses are paid, the executor is responsible for distributing the remaining assets to the beneficiaries named in the will, according to its terms.
In most instances, a well-drafted will provides for an independent administration of the estate in which the executor is authorized to act without supervision from the probate court.
Alternatively, some estates may require a dependent administration in which court approval must be obtained prior to selling property, paying expenses, or distributing assets of the estate to its beneficiaries.
B) Probate of a will as a muniment of title
If there is no need to have an executor appointed for an estate, a will may be probated as a muniment of title. Muniment of title is a probate proceeding used to transfer a decedent’s property to the beneficiaries named in their will without the need for a full probate administration. This procedure is used primarily in smaller, simpler estates when there is a valid will and there are no outstanding debts owed by the estate.
To qualify for a muniment of title, a decedent must have left a valid written will, and there must be no debts owed by the estate (except for those secured by liens on real property). Additionally, the decedent must not have applied for or received Medicaid benefits prior to his or her death.
In a muniment of title proceeding, after the probate court determines that the will meets the necessary criteria for valid wills pursuant to Texas law, it then will sign an order admitting the will to probate as a muniment of title. The signed order and a certified copy of the probated will may be used to transfer property of the decedent to the beneficiaries named in the will.
One of the key benefits of a muniment of title is that it allows for a faster and less expensive transfer of property from a decedent to their beneficiaries. This is because the process does not require a full probate administration, which in turn requires notices to creditors and beneficiaries, as well as the filing of an inventory, appraisement, and list of claims.
It is important to note, however, that a muniment of title may not be appropriate in all cases. If there are outstanding debts owed by the estate, or if the decedent applied for or received Medicaid benefits prior to their death, then a full-blown probate administration may be necessary.
Furthermore, even if the probate of a will is legally permissible under Texas law, it is nonetheless sometimes advisable to request that an executor or administrator appointed for the estate in cases where the estate is large, complex, or deals with out-of-state assets.
Our Attorneys Seamlessly Guide You Through The Probate Process
To schedule a consultation to discuss your case with one of our probate attorneys at Aldrich Law Firm, PLLC, please call us today at (210) 418-1150 or send us a message by completing the intake form on our website.