Probate and Estate Administration in Texas – Probates and estate administrations are processes that our clients are faced with after a personal tragedy. The death of a loved one is never easy, and our Firm recognizes and understands that. We make it a priority to work with you to make this process as easy on you and your family as possible.
In some cases, it may be necessary to contest a will that another person has presented to the court for probate such as when it is believed that the will presented for probate was created at a time when the testator was incapacitated or under undue influence. We can also assist you in protecting your rights through a will contest.
Common Probate & Estate Administration Terms
Administrator or Adminitratrix:
An Administrator or Adminitratrix is the person who, in an intestate administration, is charged with the duty of distributing the deceased’s estate pursuant to state intestate law and dealing with any debts owed to or by the estate.
Affidavit of Heirship:
An affidavit of heirship is an alternative to probate used to transfer title to real property. This is often a less desirable alternative to probate as it does not provide for a full administration of the estate. It is, however, often useful if the time available to probate the will has passed.
Attorney ad Litem:
In an intestate administration, the attorney ad litem is an attorney appointed by the court to represent the interests of the unknown heirs.
A beneficiary is a party to inherit under a will or trust. With regard to a trust, the beneficiaries are the equitable owners of the trust property.
A dependent administration is an administration that requires oversight by the court. In a dependent administration, court approval is required before most actions can be taken with regard to administering the estate.
Executor or Executrix:
An executor (male) or executrix (female) is a person named in a will who is charged with the duty of administering the deceased’s estate. Generally, the executor or executrix is the party who will be admitting the will to probate.
An independent administration is an administration that does not require oversight by the court. In an independent administration, court approval is generally not required before actions can be taken with regard to administering the estate.
When someone dies intestate it means that they died without leaving behind a will. When there is no will to dictate how the estate is to be distributed, state law governs and will provide for how the property of the estate is to be divided.
Letter of Administration:
This is the formal document issued by the probate court appointing the administrator or administratrix of the estate in an intestate administration.
This is the formal document issued by the probate court appointing the executor or executrix of the estate in a will probate.
Muniment of Title:
A muniment of title is a way to transfer real property (land) without the need of a full probate. To utilize this procedure, the decedent must have left a will; there must be no unpaid debts owed by the estate other than debts secured by a lien on real property and, generally, the decedent must not own any property located or controlled by a company outside of Texas.
A probate is initiated when a person dies leaving behind a will indicating their intentions with regard to their estate. A will typically designates one or more persons to act as a representative of the estate during the probate process. This representative is referred to as an executor or executrix.
Testator or Testatrix:
The testator or testatrix is the person who executed the will.
A trust can be created during a person’s life or after death though a will. Creating a trust can help to reduce estate tax liability, protect property, or to avoid probate. A trust created through a will can dictate the terms of the disbursement of the estate. It is the duty of the trustee to administer the trust according to its terms and applicable law. Trusts created through a will are often used when the beneficiaries are minors or when there is a large estate.
A trustee is a person or entity that is charged with administering a trust pursuant to the trust document and applicable law. The trustee holds legal title of the trust property for the beneficiaries of the trust.
A settlor is the creator of the trust.
Small Estate Affidavit:
A small estate affidavit is a document filed with the court in lieu of a full estate administration when the decedent died without a will. There are a number of requirements that must be met to utilize this procedure; but, if appropriate, it is a less formal and shorter method of transferring a decedent’s property.
Frequently Asked Questions
Why probate a will or seek an intestate administration?
Administering an estate allows property to be transferred from the decedent’s estate to the intended beneficiaries. This is especially important with regard to the transfer of real property (land). In addition, the court’s grant of letters testamentary or letters of administration allows the representative of the estate to act of behalf of the estate such as gaining access to the financial accounts of the decedent. Also, administering an estate can limit the ability of creditors to collect upon debts owed by the estate.
Can I inherit debts?
No. As long as you are not a co-debtor, you are not liable for a decedent’s debts. The debts of the decedent are owed by the estate. Therefore, any creditors must only look to the estate to recover on any debts. It should be noted that there are notification procedures in a probate or estate administration that can limit the time that creditors have to try to collect on any debts owed by the estate.
Is a full administration of the estate always necessary?
In some cases, it may be appropriate to file a small estate affidavit, a muniment of title or an affidavit of heirship rather than to fully administer the estate. Whether or not these alternatives are available or the best choice will depend on the specific circumstances of the case.
What documents do I need to provide to my attorney?
To initiate a probate, a certified copy of a death certificate must be provided to the court. These are often not available immediately; however you can request a “facts of death verification” form from the funeral facility to stand as a place-holder for the death certificate. Once the death certificate is prepared, it will be filed with the court and will replace the facts of death verification. While not needed immediately upon filing, at some point you will need to compile a list of the decedent’s assets as well as the decedent’s liabilities. You will be notified well in advance of the time these documents are required, and we will discuss with you what information is needed and why.
How long to I have to probate a will?
Generally you have 4 years from the date of death to probate a will in Texas; however, if good cause exists to excuse a delay of more that four years, the court may permit a probate after 4 years.
Texas Constitution & Statutes (search for Texas Probate Code
Jefferson County Clerk Records Online (which provides access to Jefferson county probate records)