Types of Probate in Texas

The bank won’t let you access your deceased loved one’s bank account unless you have “Letters Testamentary”. Your cousin said he doesn’t think that’s right because he transferred title to his mother’s car with an “Affidavit of Heirship”. Your friend said that when her mother passed they had to “probate” the Will, but it was really easy and she didn’t even have to go to court. What are “Letters Testamentary” and why does the bank say you need them?  How do you get “Letters Testamentary”? Do you have to probate the Will? What is an “Affidavit of Heirship” and why can’t you do one of those instead?

Gathering the property of a deceased loved one can be difficult and confusing. Worse, you are getting conflicting information from the banks and financial institutions you have to deal with. Generally, you have to do some sort of probate action to transfer the property of a deceased person.  There are, however, different types of probate actions – some simpler than others.  The one you will need to use will depend on your particular situation. Understanding the various types of probate actions that exist in Texas will help point you in the right direction.

Types of Probate

Independent Administration:  This is the most common type of probate. It carries the benefit of transferring title to property through court action, but it is also fairly simple and straightforward. It is most often used when there is a valid Will but may also be used when no Will exists if all heirs are known and agree.

In an Independent Administration, the court validates the Will and appoints an executor.  After appointing an executor, the court issues “Letters Testamentary”.  “Letters Testamentary” is the document that grants the executor the authority to deal with estate property.  Once letters are issued, the executor may then handle the estate without further court intervention.  However, state law imposes very specific requirements and deadlines executors must comply with. An executor who does not meet these requirements may incur legal liability.  Therefore, it is important to seek competent legal guidance if you are appointed the executor of an estate.

Dependent Administration:  This is the most complicated type of administration because it requires ongoing court involvement throughout the case.  It is usually used when there is no Will and not all heirs agree to Independent Administration.  The procedure is basically the same as in an Independent Administration, but every action the Administrator takes requires Court approval.  Therefore, prior to paying a claim, selling a piece of property or disbursing assets, the Administrator must file a motion with the Court and get a court order.

Additionally, because there is usually no Will in these cases, a judicial Heirship Determination must also be done.  An Heirship Determination is an additional procedure in which you must prove who the legal heirs are.

Muniment of Title:  This simpler, streamlined method of probating a Will can sometimes be used when there are no debts owed by the Estate.  Muniments of Title actions do not require appointing an executor.  Rather, the Will is submitted for probate and a hearing is held to prove the validity of the Will.  After that, the court signs an order admitting the Will to probate.  The Order &  Will are then used to prove ownership of inherited property.

Small Estate Affidavit:  Small Estate Affidavits can provide a simple method of transferring property when there are few assets.  To use a Small Estate Affidavit, the value of the entire estate, including real estate if there is any, must be less than $50,000.00.  An SEA states the assets owned by the estate and facts proving heirship.  It must be signed by the applicant and two disinterested witnesses – persons who do not stand to inherit anything but are familiar with the Decedent’s family and assets.  The Court reviews the affidavit signs an order.  The signed Affidavit and Order then serves as proof of ownership.

Affidavit of Heirship:  An Affidavit of Heirship is technically not a probate action. The document simply states facts regarding the heirship of a Decedent – similar to a Small Estate Affidavit. It serves only as evidence of ownership – not an actual transfer of ownership. It can be contested. Becasue of the lack of a judicial order or proper instrument of conveyance, it is a bit risky. Although there are situations where an AOH may be the only option, you should use extreme care if you are considering using one. Financial institutions and title companies may refuse to accept them. As a result, you could find years later with an unsellable property.

Final Considerations

These are the types of probate actions that can be used to transfer property ownership after death.  Keep in mind, however, that is is not a list that you can simply choose which seems easiest.  There are many factors to consider when deciding which type to use – including the type of property the estate owns, how title is held, whether or not there is a valid Will and who the heirs are.  Attempting to pass title through an incorrect probate method case cause serious problems.  Seek the advice of good probate attorney.  She will guide you through the process and ensure that estate assets are passed properly and that you, as the executor, do not incur unnecessary liability.

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