Thoughts: What is Probate?

Sam Houston Will

Sam Houston’s Last Will & Testament.  Image from Texas Land Grant Records, Archives and Records Program, Texas General Land Office, Austin, TX

Probate is a legal process that takes place after a person has died and which governs the process for administering and distributing the deceased person’s estate.  Although the probate process has acquired a reputation for being expensive and cumbersome, that is not always the case.  Here are five different ways to administer or distribute property of a deceased person in Texas:

  1. Affidavit of Heirship.  An Affidavit of Heirship may be helpful to transfer real property and some personal property without a court proceeding.  This affidavit identifies the names of the deceased’s heirs and is recorded in the real property records of the counties where the property is located – much like a deed.  This affidavit has limited applicability.
  2. Small Estate Affidavit.  A Small Estate Affidavit may be used if the deceased died without leaving a will, and the estate – excluding the homestead and other exempt property – is valued at $50,000 or less.  Generally, there also needs to be more assets than debts.  While the affidavit must be submitted to the court for approval, the process is usually shorter and less expensive than other probate proceedings.  This affidavit does not transfer title to real property other than the deceased’s homestead.
  3. Probate Will as a Muniment of Title.  A will may be admitted to probate without having an executor appointed to administer the estate.  This process is typically reserved for cases when the estate consists primarily of real estate.  The recording of a certified copy of the will and the order admitting it to probate in a county’s deed records is the equivalent of a deed from the deceased to the beneficiaries of the will.  A will may not be admitted to probate as a muniment of title if there are unsecured debts.  Likewise, many non-Texas based third parties are reluctant to honor an order admitting the will to probate as a muniment of title.
  4. Appointment of an Executor or Administrator with or without a Will.  Many times, an estate consists of a mix of assets or has substantial debts requiring the appointment of an executor or administrator.  The default rule in Texas is that this appointee is supervised by the court.  This adds additional costs and time but affords beneficiaries the comfort of knowing that the appointee is being watched and cannot do anything without the court’s approval.  The appointee is also bonded.  Fortunately, the appointee can serve independently of the court’s supervision if all of the beneficiaries of the will or all of the heirs of the estate (if there is no will) consent.  Likewise, you can specify in your will that the appointee should serve independent of supervision.  This can save the estate substantial time and money.
  5. Heirship Determination.  If the deceased dies without a will and there are no other options, a court will have to determine the names of the heirs of the deceased and each heir’s respective share of the estate through a court proceeding.  This proceeding is often required before the court will appoint an administrator of an estate of distribute the estate to the heirs.

One of the best things you can do now to save money for your estate is to execute a valid will to ensure that your wishes are carried out in the most appropriate and cost-effective manner.

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