Probate

Muniment of Title

Historical Texas law created a unique concept known as the probate of a Will as a muniment of title. This concept is very unique to Texas, and it is generally not understood by attorneys in other states. This mechanism provides for a streamlined probate process, does not require the appointment of an administrator or executor, and it is the only mechanism by which you can probate a Will in more than 4 years. However, because this method is so unique to Texas, it can be difficult to use when having to deal with attorneys in other states, especially those that represent banks and other financial institutions.

The probate of a Will as a muniment of title is a mechanism where a Decedent’s Will is filed for probate, the Court recognizes the Will, but does not appoint an executor or administrator to administer the Estate. Rather, once the Court signs its Order establishing the Will as the Decedent’s true last Will, a certified copy of the Will and the Court’s Order can be used to transfer title in any property owned by the Decedent to those people listed in his Will. In essence, the Will and the Order serve as an equivalent to a new deed to any real estate.

The muniment of title method is most effectively used when the estate consists solely of real estate. If, however, the estate includes bank accounts or brokerage accounts, experience tells us that the attorneys representing those banks and financial institutions (who usually office in New York) do not understand this Texas concept. They will, many times, requires us to convert the administration to either a dependent or an independent administration. While the muniment of title can be less costly than the traditional methods of probate, it becomes much more costly if you are required to convert it because of issues with a bank or financial institution.

As noted elsewhere in this website, a Will must be filed for probate within 4 years of the Decedent’s date of death. However, the Probate Code creates a small exception for Wills filed as a muniment of title. If the person filing the Will is determined to have not been at fault in not bringing the Will for probate within the 4 years, then the Court can recognize the Will through a muniment of title only.

One final note about the muniment of title. Although it may seem somewhat elementary, the muniment of title only applies when you are filing a Will for probate. It has no application if the Decedent died without leaving a valid Will. Likewise, the muniment of title is not available if there are debts outstanding that are owed by the Decedent, unless those debts are secured by real property. In the case where someone died without a Will and you would prefer to avoid the formal probate of the estate, see the Alternatives to Probate detailed elsewhere in this site.