The death of a loved one is a difficult time for any family, but the legal process of transferring property and assets after a loved one has passed away can add an additional element of stress to an already emotional time. In Texas, the law requires that you be represented by an attorney throughout the entire probate process. Whether your deceased loved one has a will or has passed away without a will, your attorney will need to make an application to the court to probate your loved one's estate.
Probate Assets and Non-Probate Assets
A decedent's estate is often comprised of probate assets and non-probate assets. Non-probate assets are those assets that have a designated beneficiary. For example, a retirement account is a non-probate assets that does not require a court order to transfer the account to the beneficiary. Usually, the retirement plan manager only requires a death certificate. Other types of non-probate assets are life insurance policies, payable on death accounts, and right of survivorship accounts.
Probate assets are those assets that require a court order to be legally transferred to the heir or beneficiary. The most common probate asset is real property. Also, some bank accounts that are not set up as payable on death, require a court order to transfer. Often times, a person will know that a loved one's estate needs to be probated when a financial institution states that "Letters Testamentary" are required to access and transfer the account.
Probating a Will with a request for Letters Testamentary is the most common form of probate when a deceased person has a will. A will must be probated within four years of the person's death. Typically, the Independent Executor named in the will hires the attorney and makes the application to the Court to probate the will. The original will must be filed with the court for 10 days. After that date, the attorney will set the case for a hearing during which the court admits the will to probate and issues letters testamentary. The Independent Executor oversees the enforcement of the will provisions and ultimately distributes the property to the beneficiaries. The Independent Executor can resolve all issues, provided that he or she keeps within the bounds of both Texas law and the bounds of the will. The Independent Executor is also responsible for settling debts prior to distributing property to the beneficiaries of the will and is responsible for safeguarding assets until they can be transferred. The attorney hired by the independent executor guides the executor through each step of the process.
Muniment Of Title
An application to probate a will as a muniment of title is for estates where there are no unpaid debts except for debts secured by liens on real estate. This type of probate is less expensive and has fewer requirements than a request for Letters Testamentary. A muniment of title proceeding is very similar to a request for letters testamentary, but at the hearing the Court finds that no administration of the estate is necessary. The order admitting the will to probate as a muniment of title and a certified copy of the will may be filed in the deed records to transfer title in real property. The order may also be presented to financial institutions to transfer accounts to the beneficiary of the will. No other notices or documents are required to be filed with the court.
Determination of Heirship
Often a person dies without a will. In these cases, the appropriate proceeding to transfer property is an application to determine heirship. A spouse, a child, or any potential heir of a decedent may file an application to determine heirship. This type of application is much more detailed than applications to probate wills. Additionally, in an heirship proceeding, an attorney ad litem is required. The attorney ad litem must be a neutral party who is tasked with finding the unknown heirs. Property in a determination of heirship passes according to the law of descent and distribution in the Texas Estates Code.
Contact a Texas Probate Attorney
The Law Office of Mary Holland and Janine Wilson can help you determine which type of probate proceeding is best for you and your family as well as assist you throughout the probate process.