Probating a Will in Texas
Probate means the legal filing and validating of a will in court. Once the will is validated by filing a probate proceeding in probate court, the decedent’s estate can be administered with (dependent) or without (independent) court supervision. This process requires collecting the decedent’s assets, paying his debts, and distributing these assets to the beneficiaries listed in the will.
The executor named in the decedent’s will is in charge of completing these tasks. Though typically no court supervision is necessary, in certain situations, it is beneficial to have court supervision in a dependent administration. A dependent administration is typically chosen by the executor when major disagreements are anticipated among the heirs of the estate.
Certain executors can serve independently of the Court’s supervision, which reduces the cost of probate, if the decedent’s will so states or if the heirs all agree to an independent administration. Benefits of independent administration include cost savings, reduction of attorney fees, and no coordination with the court’s schedule.
Probating a Will as a Muniment of Title
The Texas Estates Codes provides guidelines for the process of probating a will as a muniment of title, or evidence of ownership. To do so, a decedent’s will is filed and the court recognizes it, but no executor is appointed and no letters testamentary are issued by the court. Once the court signs an order establishing the will, a certified copy of the will and the court’s order are used to transfer title in property owned by the decedent to his beneficiaries named in the will. This proceeding requires a valid will, no unpaid debts owed by the estate, except for debts secured by liens on real estate, and no necessity for administration of the estate.
Probating a will as a muniment of title is beneficial when 1) the decedent’s named executor does not agree to serve or is disqualified, 2) a named executor is not made independent, 3) no executor is specified, 4) there is no need to manage the decedent’s estate, 5) there is only a need to transfer title to realty or personal property, such as an investment account or recreational vehicle, from the decedent to his beneficiaries, or 6) four or more years have passed since the date of decedent’s death.
Post-probate obligations require that within 180 days after the admission of the will, the applicant for probate of the will must file with the clerk of the court a sworn affidavit stating the terms of the Will that have been fulfilled and the terms of the Will that have not been fulfilled. The court will usually waive this obligation if there is only one adult beneficiary to the will, or all of the adult beneficiaries have filed a waiver of service and consent to the proceeding.
Probate of Holographic Will/Lost Will
If a Texas resident has handwritten his will, this proceeding allows for the will to be filed in the probate court and validated similar to an attested self-proving will. The applicant must prove the will is written entirely in the handwriting of the decedent by the testimony of two witnesses. This proceeding has the same benefits of an independent administration or muniment of title proceeding. Similarly, Texas law allows an applicant to probate a decedent’s will that has become lost upon sufficient proof to the court’s satisfaction of the will’s contents, its execution by the decedent and the cause for its non-production. The testimony of two witnesses with personal knowledge of the lost will is also required in this proceeding.