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.
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:
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).
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.
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.
Romano & Sumner, PLLC