Texas Probate

Probate in Texas includes:

  • Estate administration
  • Informal estate administration
  • Will contest
  • Guardianship

Independent Estate Administration

In many states, probate has notoriously been known as expensive and burdensome for those applying to administer their loved one's estate. Fortunately, Texas allows probate to be inexpensive, easy, and quick when having a valid will. If drafted properly, a person can request in their Last Will and Testament that their estate be probated as an independent administration allowing their named executor or appointed administrator the freedom to act with minimum court supervision. This method saves time and money and is one of the most commonly used methods in Texas. An independent executor or administrator generally has the authority to gather the decedent's probate estate, set aside the homestead and other tangible items of exempt property, fix a family allowance, compromise, settle or pay debts and other obligations, sell property, and distribute the balance of the probate estate to the estate's distributees, all without an order of the Probate Court, if necessary in the settlement of the estate. In addition, an independent executor has any additional powers granted in the will by the testator.

Dependent Estate Administration

It is sometimes necessary to seek the appointment of a dependent administrator for the estate of a person who died without a will. This may be necessary because the heirs of the estate have not been determined to date or, alternatively, the heirs refuse or are unable to designate an independent administrator. Alternatively, a dependent administration may be advisable because the estate is insolvent or has substantial debts that could be better handled in a court supervised administration. In such cases, any interested person may seek the appointment of a dependent administrator.

Avoiding Formal Administration

Other than having a trust, there are three main methods of avoiding a formal administration when decedent died without a will. These methods include: Affidavit of Heirship; Small Estate Affidavit; and Determination of Heirship without formal administration.

Affidavit of Heirship – An affidavit of heirship is a simple form used to transfer property instead of going through probate when a person dies without a will. It is used to expressly state the heirs of a deceased person and must be recorded in county property records to establish ownership. An affidavit of heirship may be considered when: (1) the decedent died without a will; (2) the heirs have access to funds to satisfy the decedent's debts and other obligations; (3) there is no other apparent need for the appointment of a personal representative to administer the estate; and (4) there is no need for a judicial determination of heirship to establish the heirs' title in, or to place the heirs in possession of, the decedent's probate estate, the heirs can provide third parties with an affidavit of heirship to evidence their authority over the decedent's assets.

In addition, the affidavit of heirship should be recorded in the deed records of the counties where the decedent's property is located, the affidavit reciting a statement of facts concerning the decedent's family history and the identity of the decedent's heirs. Although there is no direct authority for utilizing an affidavit of heirship as a means to administer a decedent's estate, it has become common practice in Texas. While the legal effect of an affidavit of heirship is limited, third parties, such as banks, title companies, purchasers, and oil companies historically have assumed the risks involved and relied on these affidavits to document the title in the decedent's property in many situations.

Small Estate Affidavit – In Texas, a small estate affidavit is a useful tool to transfer personal property and title of the homestead to the heirs without having to formally administer the estate. A small estate affidavit requires: (1) the net value of the decedent's estate, exclusive of homestead and other exempt personal property, is not over $50,000 and exceeds the known liabilities of the estate, exclusive of liabilities secured by the homestead and other exempt property; (2) no formal administration of the estate is pending; and (3) 30 days have passed since the date of death, an affidavit can be filed with the probate clerk to establish the heirs' rights to the property.

Informal Determination of Heirship – If a person dies without a will and there is no apparent need for a formal administration of the probate estate, the heirs should consider initiating a statutory heirship proceeding which generally serves the same function as the devisees of a will initiating the probate of the will as a muniment of title. The availability of this procedure again does not depend on the size, nature, extent, or value of the probate estate. In order to avoid a formal administration of the estate, the heirs may request the court to enter a finding of fact that there exists no necessity for formal administration. If the court enters its judgment determining the heirs of the decedent and finding that no necessity for administration exists, no personal representative of the estate is appointed and no letters of administration are issued. The judgment determining heirship is part of the county's deed records and constitutes the link in the title from the decedent's name into the names of the heirs at law.

Muniment of Title – If a person died with a valid will and there is no apparent need for a formal administration of the probate estate, the beneficiaries should consider filing the will for probate as a muniment of title. The availability of this procedure does not depend on the size, nature, extent, or value of the probate estate. If the court admits the will to probate as a muniment of title, no personal representative of the estate is appointed and no letters testamentary or of administration are issued. The will and the order admitting the will to probate become part of the county records and constitute a "muniment of title" or the link in the title from the decedent's name to the names of the beneficiaries.

Will Contest

Any interested person may contest the probate of an alleged will. The Texas Estates Code defines "interested persons" to include heirs, devisees, spouses, creditors or any other person or entity having a property right in or claim against the estate. The most commonly recognized grounds to contest a will include:

  • Revocation, either by physical act or by a subsequent writing
  • Lack of testamentary intent
  • Lack of due execution
  • Undue influence
  • Fraud
  • Mistake

The applicable time to contest a will (statute of limitations) depends on whether the will has been admitted to probate. Otherwise, a contest can be filed any time prior to the hearing to admit the will to probate. Generally, the proponent of the will has the burden of proof on most issues prior to the will being admitted to probate. If a contest is filed after the will has been admitted to probate, the contestant has the burden of establishing by a preponderance of the evidence that the will is invalid.

Guardianship

The policy and purpose of a guardianship is to grant another person or entity limited authority over an incapacitated person to the extent required by such person's mental and physical limitations. The guardian's authority should be limited to that necessary to promote and protect the incapacitated person. This is commonly referred to as the least restrictive alternative. The guardianship should be designed to encourage the maintenance and development of self-reliance and independence of the incapacitated person. Any person who does not have an "adverse interest" to the proposed ward has standing to file an application for guardianship and seek to be appointed as guardian, however, certain individuals have priority to serve.

If you or your family is facing a probate related issue, we can help you navigate the complex process from start to finish. Call our firm today to get started. Se habla español.