Probate is the process in which a court legally recognizes a person’s death and oversees the payment of a deceased person’s debts and the distribution of his or her assets. While mourning a loved one is hard, going through the often complicated and lengthy probate process can be overwhelming for the people left behind.
If the deceased person left a will, the probate process is usually simple and, in some instances, only a formality. However, where a person dies ‘intestate’ or without a Will, probate is usually lengthy and expensive. The court may even have to conduct a judicial determination of heirship where there are disputes about the identity of the rightful heirs or beneficiaries.
While a skilled probate attorney can help your loved ones successfully and quickly resolve probate, it is advisable to have a Will. While different states have different probate processes, the process of probating a Will is primarily universal. Accordingly, there are several types of probate proceedings. Mostly, the level of court supervision differentiates the probate proceedings. In Texas, the types of probate proceedings include:
Dependent Administration
This type of probate is largely court-supervised. With increased court involvement at every level, an estate administrator or executor requires the court’s permission for almost all their actions. The executor is under the court’s supervision when paying debtors, selling property, property distribution, and almost any other transaction. There also exists a forum to resolve estate administration-related disputes between the heirs or beneficiaries.
For people who die without a will, dependent administration is automatic. However, the beneficiaries can still choose to have an independent administration if they can all agree to it, including appointing executors. Unlike independent administrators who do not need to post bond, dependent executors cannot serve without bond. The bond must be for an amount equal to the estate’s value.
Additionally, in dependent administration, the law may require executors to hire appraisers for estate property valuation. In an independent administration, the appraiser requirement only applies to estates that do not qualify for tax exemption. A dependent executor must also submit annual estate accounts to the court as long as probate administration is active and file a final report at the end of the administration.
Heavy court involvement is one of the drawbacks of dependent administration due to higher legal fees and expenses. The repeated visits to the court for approval also waste valuable time and delay decision-making. Legal fees and expenses can consume a large portion of the estate, making many people avoid dependent administration.
However, there are circumstances where dependent administration is beneficial, including where the individual cannot trust anyone to execute or administer their estate correctly. An experienced probate attorney can be valuable when making such a decision. Other things that might make a person choose dependent administration include;
- Disputes: If there is significant disputes or conflict among the beneficiaries, dependent administration is advisable. In such cases, the high levels of court supervision ensure everyone’s conduct is acceptable, allowing the administrator to perform their duties freely. Additionally, this form of probate has a structured way of dealing with disputes between beneficiaries.
- Creditors. Similar to misbehaving beneficiaries, dependent administration controls rogue creditors by ensuring they follow a strict procedure when making claims. Failure to follow the procedures can lead to the creditor losing out on their debt claim. Essentially, dependent administration protects the estate and the executor from harassment by creditors.
- Bond. In the same way, dependent administration offers protection against misbehaving beneficiaries and rogue creditors; it also protects the beneficiaries and the creditors from malicious or incompetent administrators. The law requires dependent administrators to post a bond amount equal to the value of the estate.
Even though it complicates the probate process, dependent administration is still helpful in some instances. However, a skilled lawyer can help an executor deal with the complications that make dependent administration necessary, including creditors issues and conflicts between beneficiaries.
Independent Administration
Independent administration is the most common type of probate proceedings as it is easier and cheaper. Compared to dependent administration, there is lesser court involvement. The estate administrator or executor is not under the supervision of the court and can make independent decisions regarding their estate administration duties.
Since the executor does not need to go to the court now and then, independent administration is easier and cheaper. The executor does not have to post a bond or have an insurance policy in case of estate mismanagement. However, the law still requires the executor to file asset inventory and publish a probate notice.
Independent administration usually arises as a requirement in the will or from an executor’s request if there is no will or the will is not specific. However, an executor’s request is only successful if all the estate beneficiaries or heirs agree to it. Some of the things that make independent administration the most preferred type of probate include:
- Reduced court involvement. This type of probate saves the estate court fees and other related expenses by allowing lesser court involvement.
- Efficiency. Since the court’s approval is not required for all of the executor’s actions, independent administration allows for quicker decision-making. Generally, increased efficiency allows for a quicker resolution of the probate process.
The independent administration process is the least burdensome and most commonly used type of probate proceeding. The popularity of independent administration makes the Texas probate process simpler than in many other states.
Probate of Will as Muniment of Title
As a probate proceeding, Muniment of title is mostly unique to Texas. Typically, a will is probated in either a dependent or an independent administration within four years of the decedent’s death. However, supposing the will is not yet probated after four years, and a property needs to be transferred to the beneficiaries. In that case, the will may be probated as a muniment of title.
In a muniment of title, the court does not appoint an executor or an administrator to distribute the estate. Instead, the court issues an order to transfer the property to the intended beneficiaries. However, the court must validate the will before ordering the transfer of property. Additionally, the probate applicant must show why they delayed probating the decedent’s will.
While it is possible to have a Muniment of title within four years of the decedent’s death, an applicant must satisfy some statutory requirements. For instance, the probate applicant must prove to the court why a formal administration is not necessary. They also need to prove to the court that the decedent is debt-free.
Some limitations of probating a will as Muniment of Title is that it only works where the estate has no unsecured debts and the only assets involved are real property and cash accounts.
Heirship Proceeding
Where an individual dies ‘intestate’ or without a Will, there might be disputes about the identity of the rightful heirs. Even though the process of identifying an individual’s heirs should be straightforward, the absence of a last and testament usually complicates the process. In such instances, it is not uncommon for family members and even third parties to disagree on distributing the deceased person’s property.
The Texas Estates Code resolves the dilemma by providing a judicial determination of heirship as part of the probate process. The process usually begins after either a potential heir, a secured creditor, or a personal representative of the estate petitions the court to determine heirship in a probate process.
An heirship proceeding is a judicial process that the court uses to determine a deceased person’s rightful heirs. Essentially, the court avoids making assumptions about the identity of heirs, especially where there are disputes.
In this type of probate proceeding, the court appoints an independent attorney to investigate the decedent’s family history to determine the rightful heirs. In some instances, the court also appoints an independent administrator for the estate. Besides where a person dies without a will, heirship proceedings may also be useful where an estate is large.
Small Estate Affidavit
For people whose only real estate is their homestead, going through probate might not be expensive and a waste of time. Essentially, the often expensive probate process may end up taking a considerable portion or all of their estate. For such heirs and beneficiaries, the Texas Estate Code provides a simple, inexpensive process, the small estate affidavit. The process mainly involves a one-time filing indicating the estate’s assets, debts, and other expenses.
A small estate affidavit is usually applicable where the decedent did not leave a will and did not have a substantial estate. Any party who would typically inherit the estate under intestacy law could file the affidavit, including a spouse, a child, or a close relative if the decedent were unmarried. However, it is advisable to ensure there are not disputes before filing a small estate affidavit.
Affidavit of Heirship
Like a small estate affidavit, an affidavit of heirship is usually applicable where the deceased person does not have a substantial estate, and probate is unnecessary. An affidavit of heirship outlines a decedent’s family history and identifies heirs, but it is not necessarily a court process. Essentially, the heirs agree to file an affidavit as a public record in counties where the deceased person had property.
While it is cheaper and less time-consuming, unlike a judicial determination of heirship, it does not conclusively determine estate heirs. Consequently, an omitted heir or a creditor can easily and successfully challenge its authenticity in court. Some banks and other title companies might also refuse to recognize it as a valid transfer of title.
Probating a Will in Texas
Compared to many other states, probating a will in Texas is notably simple. Mostly, the process is more straightforward due to the independent administration process that limits the level of the court involvement in estate administration. Essentially, executors perform their duties with very little court supervision.
Typically, you do not need probate to transfer some assets in Texas, including community property with right of survivorship, payable-on-death bank accounts, proceeds from life insurance policies, and joint tenancy property with right of survivorship. Essentially, you avoid probate when you name beneficiaries and put your assets in a living trust.
If you have any questions about these types of probate proceedings or need help maneuvering through these proceedings, please contact Zarazua Law today for a FREE consultation!