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The Texas Probate Process: An Overview

In Texas, the probate process is very simple if you understand the definitions, the process, and the time lines. In the following article, we provide a broad overview of the types of probate administrations and personal representatives. These and other issues will be explored in more detail in future articles in coming months.

By way of reminder, Ford & Mathiason LLP is a boutique Estate Planning, Probate, and Guardianship firm serving Texas from offices in Houston and Dallas. Past articles written by members of the firm, along with other valuable information related to the estate planning, probate and guardianship process can be found on the firm?s website at www.ford-math.com.

In Texas, probate cases are going to fall into one of four categories of probate administrations ? 1) testate administrations (Decedent died with a Will), 2) independent intestate administration, 3) dependent intestate administrations, or 4) the probate of a Will as a Muniment of Title. The category of administration can determine how easy or how difficult the probate process can be to navigate.

When someone dies with a Will, the Will generally names a person to serve as the Executor of the Estate. Following the Decedent?s death, the named executor is going to file the Will for probate and ask the Court to appoint them to represent the estate?s interests. Among the duties of the executor include the obligation to identify the Decedent?s assets, pay debts, pay taxes, prosecute claims owed to the estate, and properly distribute the estate assets upon conclusion of the probate. Generally, the probate of a proper Will is the simplest form of probate. The executor is generally appointed as the ?independent? executor, which gives them great flexibility in carrying out their obligations.

In cases where the Decedent dies without a Will, the default rule in Texas requires a dependent probate administration. As the name would imply, the administrator of the estate is dependent upon the Court for supervision of the probate process. While the dependent administrator will have the same responsibilities as the independent executor described above, the dependent administrator will be required to seek the Court?s approval for each small step in the process. Additionally, the dependent administrator will be required to post a surety bond and to complete and file detailed accountings with the Court every year. This additional oversight and the ensuing restrictions dramatically increase the cost and the time involved in the probate administration. Likewise, from a practical standpoint, the dependent administration requires that all attorneys? fees, costs of litigation, etc. be approved by the Court prior to payment. Depending on the particular Court, these fees may be cut dramatically depending on that Court?s view on fees.

As an alternative to the dependent administration, Section 145 of the Texas Probate Code provides a mechanism for the Court to create an independent administration, even though the Decedent died without a Will. Under that provision, if all of the heirs of the estate agree, then the Court can appoint an independent administrator and waive the requirement of a surety bond. By doing this, the rather difficult and cumbersome dependent intestate administration is substituted with the less burdensome independent administration. Like independent executors appointed in a Will, the independent administrator appointed pursuant to the court-created independent administration has very little court supervision. This freedom and flexibility relieves the administrator of having to seek the Court?s approval prior to pursuing claims, paying expenses, etc.

It should be noted that under either scenario when someone dies without a Will, the Court is going to be required to make a judicial determination of heirship. This determination is a judicial finding as to the identity of the Decedent?s heirs and the proportions of the estate to which each is entitled. In order for the Court to create the independent administration under Section 145 of the Code, the heirship determination must be completed at the same time that the Court appoints the independent administrator. If the administration is going to be dependent, however, the determination of heirship can wait until some later point after the appointment of the dependent administrator.

As an alternative to the aforementioned methods of probate, Texas law recognizes the probate of a Will as a muniment of title. Under this method, the Will is recognized by the Court as valid, but no executor or administrator is appointed. Rather, the Will is recorded in the deed record of the county in which the Decedent resided at the time of his death, and that recording serves to link the chain of title in any property from the Decedent to the persons named in the Will. Thereafter, a certified copy of the Will can be used to transfer title to any property.

It should be noted that the muniment of title method is the only method that exists for probating a Will more than four (4) years after the date of the Decedent?s death. This method can be difficult to pursue, but it can be effective if completed correctly.

Obviously, this brief overview of the types of probate in Texas is not exhaustive. In future articles, we will more specifically address some of the nuances of each type of probate administration and the advantages and disadvantages of each. In the meantime, anyone needing help with a probate matter is invited to contact Ford & Mathiason LLP for further information and assistance.


About the Author
Keith Morris is Of Counsel to the firm of Ford & Mathiason LLP, a boutique Estate Planning, Probate, and Guardianship firm serving Texas from office in Houston and Dallas. Mr. Morris? practice primarily include probate, guardianship and estate planning in Houston, Texas. Mr. Morris is a graduate of Texas A&M University and The University of Houston Law Center. For more information on the topic of this article or other topics related to Estate Planning, Probate, and Guardianship issues, please visit the firm?s website at www.ford-math.com, or you may contact Mr. Morris directly by telephone at 713.260.3926 or e-mail at kmorris@ford-math.com.

Our Houston office conveniently serves our clients in Harris, Montgomery, and Fort Bend counties, while our Dallas office serves clients in Dallas, Tarrant, Denton, and Collin counties.