Although itís not really an enjoyable task after the death of a loved one, probate administration can be quite easy in Texas with a will thatís drafted by an experienced estate planning attorney.
Probate administration is the procedure in which a judge oversees the payment of debts and the distribution of assets of an individual whoís passed away. In some cases, probate can be an extremely stressful and expensive process. Plus, it can be very time consuming. Fortunately, probate and estate planning attorney Pamela Hailey-Petty has the experience to guide executors and family members through the process to make the situation more manageable and less of a burden.
Texas probate is an important legal process that allows an individualís heirs to obtain their share of the estate as instructed by the will. This process is much easier than if thereís no will (intestacy) and has less court involvement.
If the decedent has left a will, the probate court will admit the will to probate and issue testamentary letters to the executor. With this, the executor has the power to gather the assets and administer them according to the decedentís wishes in his or her will. Usually wills drafted in Texas direct the designated executor to pursue independent administration for expediency and simplicity. If thereís no will, the court will decide the beneficiaries and how the estate is to be distributed pursuant to Texas intestacy laws.
Texas has several types of probate proceedings, as well as several alternatives based on your intentions for administering the assets.
Muniment of Title
This process is a much more simple and inexpensive way to transfer estate assets with a will. This can be used only when:
- thereís a valid will;
- there are no unpaid debts, except those secured by a lien on real estate; and
- Medicaid has no claim against the estate for recovery of benefits received by the deceased.
The will is filed with a request that it be probated as a muniment of title. If the judge determines that thereís no reason for probate administration, he or she will admit the will into probate as a munimentóor evidenceóof title to the estate assets. In effect, the will is the legal authority that transfers the assets to the named persons or entities to inherit them in the will. Thereís no need for an executor or administrator, but the person who requested probate as a muniment of title must file an affidavit with the court that states that the terms of the will have been completed.
Small Estate Affidavits (SEA)
Texas also has a procedure for small estates where the deceased did not have a will.
Thereís no need to open a probate court proceeding or use a muniment of title if thereís no will and the value of the probate estate is $50,000 or less.
Those who stand to inherit property can prepare a simple affidavit (sworn statement) to collect the property. Texas law says that for the decedentís separate personal property (all that isnít real property), one-third will pass to the surviving spouse, and the children will divide the remaining two-thirds equally. As far as the decedentís separate real property, the surviving spouse gets a one-third life estate, and the children take all equally, subject to the surviving spouse’s one-third life estate. Other rules set out the division for other circumstances, such as a decedent without a spouse or one without living children.
By statute, the Small Estate Affidavit canít be used where the decedent left a will. Applicants must swear that the decedent died without a will. If the individual had a will, a different probate procedure must be used.
County Probate Courts require a death certificate to be filed with all probate applications, including SEAs, and the Small Estate Affidavit canít be used to transfer title to real property other than the decedentís homestead.
No Probate Needed
There are some assets that can be transferred to the new owner without probate. Some of these include the following:
- Community property with right of survivorship;
- Property held as joint tenancy with right of survivorship;
- Payable-on-death bank accounts;
- Life insurance proceeds; and
- Survivorís benefits from a pension or annuity.
If you have questions about simple Texas probate administration, speak with Texas estate planning attorney Pamela Hailey-Petty by contacting the Hailey-Petty Law Firm in Austin at (512) 910-8977 or email email@example.com. She can help you with any follow-up concerns you have and make sure your estate plan is effective and comprehensive for your sake as well as your familyís.
Your familyís future is our business.