The Probate Process: Probate With a Will (Part 2 of 3)

In part 1 of this series we defined probate and described the procedures we as lawyers go through before going to court. There are two potential applications: an application to probate a Will (used when a Will exists) and an application for administration and to determine heirs (when no Will exists – often 2 separate applications). In part 2 of this series we will be talking about the former scenario: what the probate process looks like when a Will exists.

No Need for Administration

The size of the estate will determine what kind of administration will take place to distribute the assets named in the Will. Is it a large estate? Are there debts owed by the decedent to anyone? Will there be significant asset transfers like the title of a house? If the answer to the first 2 questions is no, and the only asset requiring a transfer of title happens to be real estate, then we’re likely looking at a procedure called a Probate as a Muniment of Title.

Muniment of Title is a special concept in Texas estate law. In muniment of title there is no representative appointed to carry out the will. There is still a hearing and you still have to prove up the will, but there is no executor or administrator named. As soon as the court recognizes that the Will is the last Will and Testament of the deceased then the Will itself acts as the proof of title transfers. In order to do a muniment of title you have to meet two major criteria:

• No debts not secured by real property This means the deceased can’t have any financial debts. If there are debts they have to be held up in something like a mortgage where there is real property securing the debt.
• The court finds no other reason for administration of the estate This is open ended, but if there’s no debts owed by the estate then the court will generally accept a muniment of title.

Need for Administration

If the situation doesn’t qualify for a muniment of title then you look to the will to see if the executor named in the will has been authorized to serve “independently” of court supervision and without bond (a bond acts like an insurance policy as security for the estate against misappropriate by an executor or personal representative of the estate).

• Independent Administration No need for a bond or court supervision of the executor.  The court will allow an independent administration either when the will calls for the appointment of an independent executor, or, if the will fails to specify whether the executor may serve independently, then all of the beneficiaries of the estate may agree to allow the executor to serve independently.
• Dependent Administration If the will fails to specify that the executor may serve independently and all of the beneficiaries of the will cannot agree to have the executor serve independently, then the court will require the executor to act under the supervision of the court and most likely will have to post a bond as part of a dependent administration.

Remember, these scenarios only reflect what takes place if a Will exists. In part 3 of the series we will discuss the probate process when no will exists.

Consult An Experienced Probate Attorney

We always recommend you seek the counsel of an experienced probate attorney if you have any questions about the probate process or writing a will. A qualified probate attorney will guide you toward the right choices for your family and everyone involved. At Romano & Sumner, we pride ourselves on our ability to assist our clients in navigating complex legal processes like probate. If you have any questions, please feel free to contact us today.