Probate

Probate is the legal process where wills are authenticated and put into effect, heirs are determined and the debts of a decedent are paid.

Probating a Will

A will doesn’t take legal effect until the person who made the will dies and the will is admitted to probate.

Admitted to probate means that there has been a legal proceeding where a judge has heard evidence that a person has died, that a certain document is his will, and that the will was executed with all legal requirements to make it legal and enforceable.

Most legal documents don’t require any court action to go into effect. A person may sign a contract, deed, power of attorney, trust without any requirement that a court approve the document.

What makes a will special, so that it requires a Judge to review and approve it before it can go into effect? The simple answer is that a Will is intended to go into effect only after the person who made it has died. The person making a will, (the testator), isn’t around to testify that it really is his will and that he signed it, and to carry out its provisions.

Executors and Administrators

Someone has to carry out the terms of the will, and if that person is named in the will, he is called an executor.  If no one is named in the will, or if none of the persons named are able to serve, the Court will appoint an administrator. An administrator’s duties are very similar to an executor and include protecting and insuring the property of the decedent, paying his creditors, and seeing that the property is delivered to the beneficiaries.

An executor receives what are called Letters Testamentary and an administrator receives what are called Letters of Administration. This is not a letter as we normally use the word. Think of it as an executor’s certificate. It’s the legal document that shows that a person has been legally appointed.

A will nominates someone to serve as executor, but the Judge appoints the executor. A person has no authority to act as executor until the Judge has signed the order appointing him and he has taken his oath and filed any required bond.

Muniment of Title

Sometimes a will can be admitted to probate without the appointment of an executor or administrator. This is called probate as a muniment of title.

Muniment is an old legal term and a close comparison is a deed. When a will is admitted to probate as a muniment of title, it acts to pass ownership from the person who made the will to the named beneficiaries, in much the same way as a deed passes ownership from the grantor to the grantee.

Determination of Heirship

Unfortunately, some people don’t make a will, or any other document providing for transfer of ownership on death.

In this case the State of Texas has passed laws of descent and distribution, that set out who are the heirs of the decedent and what share of his property they are to receive

In a determination of heirship proceeding a Judge hears evidence as to a person’s family and applies the law so as to make a determination of what share of his property they should receive.

The law treats community property and separate property differently, and real property (land and houses) and personal property (money, cars, furniture, stocks etc.) differently.

Probably the most common misunderstanding people have is that a surviving spouse inherits everything. This is not correct, particularly if the decedent has one or more children who are not his spouse’s children.

Independent and Dependent Administration

When a person doesn’t have a will it will frequently be necessary to ask the court to appoint an administrator to protect the decedent’s property, pay his debts and distribute the property to his heirs.

In Texas there are two types of administration of estates, Independent and Dependent. The terms refer to the degree of court supervision.

An independent administration proceeds without very much court supervision. Once appointed an independent administration must notify creditors and beneficiaries, and prepare an inventory of property belonging to the estate.  

Two groups of people need to know what property is included in an estate, creditors and beneficiaries (or heirs if there isn’t a will).

If there are creditors who are unpaid and the debt is not secured by a lien on real estate, the inventory must be filed with and approved by the court. If all creditors have been paid then only the beneficiaries (or heirs) need to receive the inventory.

In a dependent administration, almost everything that the administrator does must be approved by the court.

As you might expect an independent administration is to be preferred. A person can provide for independent administration in his will, or the beneficiaries can agree and with the Judge’s permission create an independent administration.

Work with Experienced Texas Probate Attorneys

Our law firm has decades of experience in probate and we are ready to guide you through the process.