In Texas, probate is mainly covered by the Estates Code, which replaced the Probate Code in 2014. Below is a general overview of the statutes that may apply when you pass away in Texas, with or without a will.
Independent Administration of Estates
Independent administration, which is referenced in Section 401 of the Estates Code, is a simpler, less expensive, and faster way of settling your estate, which is why so many people who draw up a will in Texas direct the executor to pursue it.
An independent administration does not require your executor to post a bond that protects your estate against losses due to their willful or unintentional misconduct. They still have to file an asset inventory with the court and notify potential creditors of your passing, but they don’t have to obtain permission from the court before they pay creditors, sell property, or distribute assets to beneficiaries.
Even if you don’t request independent administration (or if you pass away without a will), whoever will be administering your estate can petition the court for authority to conduct an independent administration, provided that all of your beneficiaries give their consent.
Dependent Administration of Estates
With a dependent administration, there is greater court involvement in the handling of your estate. Your estate representative must obtain approval from the court before they pay debts, sell property, distribute assets, or enter into any agreement that obligates the estate, such as settling lawsuits and executing contracts. They must also file a final report with the court that details how all property and finances were handled and distributed.
With so many controls in place, dependent administration is both expensive and time-consuming, which is why it is generally used in certain circumstances, such as intense distrust between heirs.
Muniment of Title
Muniment of title (Texas Estates Code 257.001) is a simple and less expensive option for transferring estate assets. Your heirs can apply to use it if-
- You left a valid will
- There are no unpaid debts, except obligations secured by real estate
- Medicaid has no claim against your estate for recovery of benefits
A family member or other heir will file your will and request the court to allow it to be probated as a muniment of title. If the court agrees that probate isn’t necessary, the will essentially serves as a guide for transferring your assets to the named beneficiaries. The party who requested probate as a muniment of title must file an affidavit within six months to confirm that the terms of your will have been carried out. If anything is outstanding, they must identify those issues.
Small Estate Affidavits
Texas Estates Code 205.001 allows your beneficiaries to avoid probate if you leave no will and the value of the probate estate does not exceed $75,000. Those due to inherit under the Texas laws of intestate succession can prepare and present an affidavit to receive their inheritances. These documents must be sworn to by the recipient (or their legal representative if they lack capacity) and two disinterested witnesses.
If you do leave a will, Texas Estates Code 354.001 permits your executor to use a simplified process if the value of your property (excluding the homestead and exempt property) is only sufficient to:
- Pay the family allowance to your surviving spouse, minor children, and adult incapacitated children
- Satisfy certain creditor claims
Texas Estates Code 451.003 allows the court to issue an order of no administration if your assets don’t exceed the total of the family allowance after your funeral and medical bills have been paid. This order awards the assets to your spouse and/or minor or incapacitated adult children.
Contact a Texas Probate Attorney
The Texas Estates Code can be challenging to navigate, especially when the estate is complicated or the heirs disagree. Consequently, most courts will require your executor to be represented by an attorney. Romano & Sumner’s experienced Texas probate attorneys will help them understand how the law will apply to your estate and develop a plan for settling it as efficiently as possible. If you have questions or would like to speak to a member of our team, please contact us or call 281-545-7614.