"We must reject the idea that every time a law's broken, society is guilty rather than the lawbreaker. It is time to restore the American precept that each individual is accountable for his actions. " - Ronald Reagan
Texas Probate Process
The Texas probate process is comparatively simple if you understand the definitions, the process, and the time lines required by law for the timely and valid administration of an estates assets in the event of an individual's death. The following is a broad overview of the types of probate administrations and personal representatives you might encounter in the process.
In Texas, probate cases generally fall into one of four categories of probate administration:
- Testate Administrations (Decedent died with a Will)
- Independent Intestate Administration
- Dependent Intestate Administrations
- Probate of a Will as a Muniment of Title.
The administration type can help you determine how easy or how difficult the probate process will be to navigate successfully..
When someone dies with a Will, the Will generally names the person to serve as Executor of the Estate. Following the Decedents death, the executor is going to file the Will for probate and ask the Court to recognize them, and appoint them to represent the estates and administer the estates interests.. The executor includes the obligation to identify the Decedents assets, pay debts, pay taxes, prosecute claims owed to the estate, and properly distribute the estate assets upon conclusion of the probate. Generally, the probate of a proper Will is the simplest form of probate. The executor is generally appointed as the independent executor, and dependent upon the language used in the will, grants them great flexibility in carrying out the administration of the estate.
If the Decedent dies without a Will, the Texas default rule requires a dependent probate administration. In a dependent probate administration the admin of the estate relies on the Court for supervision of the probate process. As opposed to the independent administration executor, the dependent administrator is required to seek the Courts approval for each step in the process. The dependent administrator must also post a surety bond, file detailed accountings with the Court annually. As you can imagine, a dependent administration has rising costs associated with the additional beurocracy involved, in addition it is important to know all costs must be approved by the Court prior to payment, including legal fees and administrative costs.
Section 145 of the Texas Probate Code does provide an option for the Court to create an independent administration, even though the Decedent died without a Will. Under Section 145, if all of the heirs of the estate agree, then the Court can appoint an independent administrator and waive the requirement of a surety bond. The freedom and flexibility relieves the administrator of having to seek the Courts approval prior to pursuing claims, paying expenses, etc.
Heirship must also be determined by the court if the Decedent died without a will. This determination is a judicial finding as to the identity of the Decedents heirs and the proportions of the estate to which each is entitled. The heirship determination must be completed at the same time that the Court appoints the independent administrator under Section 145. In a Texas probate dependent administration the determination of heirship is not as time sensitive and can wait until later in the process.
Texas law also recognizes the probate of a Will as a muniment of title. In a Will as muniment of title the Will is recognized by the Court as valid, but no executor or administrator is appointed. Rather, the Will is recorded in the county the Decedent resided at the time of his death, and that recording links the chain of title in any property from the Decedent to the persons named in the Will. Following registration a copy of the Will can be used to transfer title to any property.
Muniment of title is the only solution in Texas for probating a Will more than four 4 years after the date of the Decedents death. This method can be difficult to pursue, but it can be effective if completed correctly.
Obviously, this is only a brief overview of the probate process in Texas. If you need help with a probate matter please contact us for further information and assistance.
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