Probate of a Will

Probate of a Will2018-05-28T19:58:31+00:00

Each type starts out the same but the process begins with filing the initial application and getting a personal representative appointed.  After filing the application, a number of things occur, including the following:

  • Filing the will with the court, where it is proved valid or invalid
  • Accounting for all the assets of the estate and reporting the results to the court
  • Creditors are given notice of the death and are given the opportunity to make claims against the estate
  • Debts and expenses of the estate will be paid
  • Remaining assets are distributed according to the will or according to Texas law, if there is no will
  • If there is a dispute about the validity of a will or a disagreement about tow assets should be distributed, probate litigation may occur.

In Texas there are three types of probate administration.  The differentiating factor in each type of administration is the level of court supervision.  Each of the three has it’s advantages and disadvantages.  Following are the three types of probate:

Dependent administration

This form of probate has a high level of court supervision.  It means that the administrator needs the court’s permission to enter into almost any transaction, from paying the estate’s debts to selling property.  The following items are considered about this probate:

  • Conflict:  Significant conflict among heirs or beneficiaries results in court supervision and the judge can oversee the conduct of everyone involved, providing some protection for the administrator
  • Creditor issues:  This type of administration requires creditors to follow strict procedures for making claims if a creditor fails to present their claim within a certain time or makes a claim incorrectly; the estate will no longer be liable for that debt.
  • Bond:  The administrator must provide a bond based on the size of the estate.  The bond is there to provide protection for the beneficiaries and creditors of an estate.  Once a dependent administration is closed the administrator
  • Fees and Expenses:  Repeated applications to the court for approval of an administrator’s actions means that legal fees and court costs are typically higher than other types of administration.

Independent Administration

This is the most common type of probate administration in Texas.  Independent Administration is much less expensive than dependent administration because the administrator does not need to go to court very often, nor does he or she usually have to post a bond.  This type of administration can be either requested in the will or arise by consent of all heirs or beneficiaries. Things to consider:

  • Efficiency:  This type of probate can usually be completed more quickly than a dependent administration.
  • Court Involvement:  This proceeding involves less court involvement, which means less attorney’s fees and costs to you.  The personal representative does not need court approval for all actions, saving the estate on fees and expenses.

Muniment of Title

This method of probate is unique to Texas.  There is no executor or administrator appointed to distribute property.  Rather, once the court certifies that the will is truly the last will of the deceased person, the court’s order itself transfers title to the intended beneficiaries.  Essentially, the court order serves as an instrument transferring title to property.

A Muniment of Title works best when real estate is the only asset in the estate.  If there are bank accounts, brokerage accounts or similar assets, it is likely that a dependent or independent administration will be necessary.