Probate is the legal process of settling a deceased person's affairs by supervising the distribution of their assets and paying off their debts. It begins after someone dies and involves such things as filing an application with a probate court, notifying beneficiaries and creditors, and conducting an inventory and appraisal of assets. Sound complicated? It doesn't have to be. If it turns out you must go into probate, Texas offers several types of probate procedures that could meet your specific needs, saving you time, money, and stress.
Independent Administration is the most common probate in Texas. If the deceased left a will, it is submitted to probate court for validation. Once it is validated, the court will appoint an executor, who is then given the authority to settle the estate, including paying bills, managing property, and distributing assets with minimal court intervention. This form is perfect for small estates with no major disputes.
Dependent Administration, however, is the opposite of Independent Administration. It is mandated by the court for several reasons:
- No Will or No Valid Will – Without the guidance of a valid will, the court may feel it should monitor each step in the probate process closely.
- Significant Debt – The court may want to ensure there is a fair payment of all debts.
- Heir/beneficiary disagreements – In this case, court oversight prevents one heir or beneficiary from railroading the others.
In Dependent Administration, the executor must get court approval for almost every financial move, from selling property to paying debts. Although it does offer protection in cases involving high-value estates and fraud concerns, it can also be time-consuming, leading to higher fees and longer timelines.
Muniment of Title is excellent for estates with a valid will, no debts, and also when the only major asset is real property. In order for it to work, the court admits the valid will as a muniment, or proof of title, which then allows beneficiaries to claim assets such as real estate and some financial accounts. Because there is no lengthy administration required, this option is faster and less expensive than the usual probate.
Small Estate Affidavit, or SEA, is a good choice when the deceased died intestate, or without a will. It requires no formal hearing and is especially good when heirs need immediate access to limited assets. SEA is available when:
- The value of the estate is $75,000 or less, excluding homestead or exempt property.
- There are no debts other than those secured by liens on real estate.
Heirs must submit a sworn affidavit listing assets, debts, and proposed distributions. If approved by the court, the affidavit may be used to claim the assets. SEA is good for families with few assets.
Another probate process is Determination of Heirship. This takes place if the deceased dies without a will, but there are assets that require a court transfer. It allows someone to prove he or she is a legal heir of the deceased.
During the process, the court will:
- Have possible heirs file an application of heirship
- Have possible heirs provide family history or testimony
- Appoint an attorney ad litem for unknown heirs
- Hold a court hearing to establish rightful heirs
This procedure is necessary when the title to the property must be transferred.
If the decedent created a will in another state and died in that state but owned property in Texas, a process known as “Ancillary Probate” must take place to transfer the Texas property. This allows a foreign will to be recognized by Texas courts and used to transfer local assets.
How do you decide which probate suits you best? Is the size of the estate a special concern? Maybe you're more concerned about outstanding debts or how much time you'll have to spend in court. Nancy Perry Eaton has years of experience in probate procedures in Texas. She would be happy to help you choose which probate is right for you and stay with you until your probate is resolved.