Probate & Heirship

Probate & Heirship 2017-03-20T14:54:05+00:00

What does it mean to probate a will?

Probate is a legal process that occurs after a person has passed away and includes determining the validity of the decedent’s will and the administration of the decedent’s estate. A will should appoint an executor to handle the estate. The duties of the executor include the following: (1) preparing an inventory, appraisement and list of claims of the property owned by the decedent at the time of his death; (2) if required, having the property appraised; (3) notifying creditors of the estate and paying debts and taxes; and (4) distributing the decedent’s property according to the terms of the will. A probate proceeding must be filed within four years after the date of death of the person whose will is being probated.

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What is an estate?

An “estate” refers to the property of the decedent at the time of his death.

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Do I need to hire a lawyer to probate an estate?

Yes. Texas cases have held that a non-lawyer may not appear pro se (meaning without a lawyer) in the capacity of the independent executor of an estate or a trustee of a trust because to do so would constitute an unauthorized practice of law.

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Do I always have to probate a will?

No. Generally, a will should be probated if property, such as a house, was titled in the decedent’s name. However, in cases where the decedent named a beneficiary in a contract or where community property rights are involved or property is in a trust, probate may not be necessary. For example, the following assets can be transferred without probate: (1) community property with a right of survivorship; (2) joint tenancy property with a right of survivorship (such as bank accounts); (3) payable-on-death (POD) accounts, certificates of deposit, savings bonds, and stocks and bonds; (4) survivor benefits from an annuity, IRAs, pensions, retirement plans, and (5) life insurance proceeds. If property is held in trust, the property is distributed according to the terms of the trust rather than under the terms of the will.

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What is an independent administration?

This means that the independent executor usually does not have to post a bond (for the protection of the estate if the executor acts carelessly or commits dishonest acts against the estate) and does not have to get court permission to settle the estate. The independent executor must probate the will in order to be appointed as independent executor. A dependent administration requires the representative of the estate to get the court’s permission in order to handle the affairs of the estate.

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How do I start to probate a will?

You need to hire an attorney to assist you. A true and correct copy of the original will must be attached to the Application to Probate Will and for Issuance of Letters Testamentary, which must be electronically filed in the decedent’s county of residence. The original of the will must be filed with the court clerk within three (3) days after the Application to Probate Will is filed with the court.  The original of the will remains with the court clerk.  YOU DO NOT GET BACK THE ORIGINAL WILL.

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What happens if I cannot find the original will?

Texas Estates Code section 256.156 allows a copy of the original will to be probated if the original of the will cannot be found. However, to do so may be a difficult and expensive process. If the original will cannot be found, it is presumed that the testator intended to revoke it but that presumption may be rebutted. Therefore, there is no guarantee that the court will admit a copy of the will to probate.

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Do I have to go to court?

If you are named as the executor, you will need to go to court, but probably only once. Your attorney will prepare the documents needed for the judge to admit the will to probate. As the executor, you must (a) attend the hearing in order for the will to be admitted to probate, (b) sign a Proof of Death and Other Facts in court, (c) provide the court with the death certificate, and (d) sign and take the Oath of Executor before the judge or the court clerk. You will also have to prepare and file an Inventory, Appraisement and List of Claims owed to the estate, publish a notice to creditors of the estate, and provide the proper notice to the beneficiaries named in the will.

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What is a muniment of title?

This procedure is more simplified than a typical administration of an estate and is a method to transfer assets of an estate. A “muniment” is documented evidence of title of ownership, such as a deed to a house. No executor or administrator is appointed. A court may admit a will to probate as a muniment of title if it is satisfied that the will should be admitted to probate and the testator’s estate does not owe an unpaid debt, other than a debt secured by a lien on real estate, and there are no other actions that require the appointment of an executor or administrator. It cannot be used if Medicaid has a claim against the decedent’s estate for recovery of benefits received by the decedent.

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What is a small estate affidavit?

A small estate affidavit may be used when the decedent died without a will and the total value of the estate is less than $50,000.00, not counting the value of the decedent’s homestead and other exempt property. It is used when the decedent had very few assets, such as a bank account, homestead, a car and a little personal property. The affidavit must be filed in the county where the decedent resided at the time of death and must be sworn to under oath.  It must identify the decedent’s heirs and must be witnessed by two disinterested people who swear under oath that the decedent’s family history information in the affidavit is true and correct. Once the probate court approves the small estate affidavit, the distributees can ask that the estate assets be distributed to them. However, anyone who receives the estate assets may be liable to any creditors of the estate or anyone else having a prior right to the estate assets. The small estate affidavit only transfers title to the decedent’s homestead; it does not transfer title to any other real property owned by the decedent.  If there is other real property, an heirship proceeding should be filed.

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What is an affidavit of heirship?

An affidavit of heirship is used when the decedent dies without a will and has an estate that is primarily composed of real estate that is titled in the name of the decedent. It must be submitted by at least two disinterested witnesses and must be signed before a notary public. It must contain certain facts regarding the decedent’s marital history, family and ownership of property. It should be recorded in the county where the decedent owned real estate.

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