Collin County Living Well Magazine July/August 2017 | Page 17

A Primer on Probate
L
Courtesy Leu & Peirce, PLLC
osing a loved one is never easy.
Many people describe the weeks
and months following such loss
as “a blur.” After notifying fam-
ily members, and planning and
carrying out the memorial service,
comes the question of how to handle
the loved one’s estate. Many times, the
answer is probate. While the probate
process has a reputation for being
time-consuming and costly, in Texas, it
is relatively quick and inexpensive.
Probate provides for an orderly transi-
tion of property ownership following
a death. Probate is necessary when
an individual who has died owned
property that does not pass directly to
another individual through beneficiary
designations. Accounts with rights
of survivorship or payable-on-death
beneficiaries, including life insurance
policies, are examples of property that
passes directly to a designated indi-
vidual without the need for probate.
Importantly, and despite common be-
lief, title to real property listed in more
than one name does not automatically
pass to the survivor. Therefore, pro-
bate is often necessary to transfer title
to the surviving spouse.
Any “interested person” may initiate
the probate process. This includes
anyone having a property right in, or
claim against, the estate being admin-
istered. Texas has two types of formal
probate procedures. Most probates
are handled as independent admin-
istrations, meaning the executor or
administrator does not have to post
a bond or ask the court’s permission
before settling the estate. By contrast,
a dependent administration is a court-
supervised administration. If there is
no Will, or if the Will does not provide
for an independent administration,
then the administration will be “depen-
dent,” unless the beneficiaries agree
otherwise. Dependent administrations
tend to be more expensive, since the
administrator must seek court approv-
al for every major decision. However,
this added burden and expense may
be preferable to protect the adminis-
trator if the estate has multiple credi-
tors or feuding beneficiaries.
An “executor” is a personal represen-
tative who was named in a Will that
has been admitted to probate, and
who serves in the capacity stated in
the Will. An “administrator” is anyone
else who is appointed to handle the es-
tate. The individual named in the Will
has first priority to serve as executor.
However, the judge may refuse to ap-
point an individual named in the Will
if the judge finds that person to be un-
suitable.
Once the judge is satisfied that the
Will is valid and the person asking to
be appointed executor is a suitable
person to serve, the executor will be
issued Letters Testamentary, which
evidences the executor’s authority to
gather assets and act of behalf of the
estate. The executor must issue notice
to creditors, notify beneficiaries, and
gather the assets, which the executor
must safeguard until the time comes
to distribute to the beneficiaries. Col-
lecting and protecting estate assets is
the primary job of the executor, who
should care for the property of the es-
tate as a prudent man would care for
his own property. Once the business of
the estate has been concluded, assets
have been collected, and debts have
been paid, the executor may distribute
the property to the beneficiaries.
In addi tion to independent and depen-
dent administrations, Texas law allows
for another simple probate procedure
known as a muniment of title. A mu-
niment of title may be used when an
individual died with a valid Will, there
are no unpaid debts, except those
secured by real property, and the in-
dividual was not receiving Medicaid
benefits prior to death. This proceed-
ing allows for the probate of a Will
without the requirement of appointing
an executor or administrator, notifying
creditors, or filing an inventory, thus
making the process easier and less ex-
pensive. A muniment of title is not a
feasible option if the individual owned
property outside the state of Texas or
held non-probate assets, such as insur-
ance or retirement accounts, that were
payable to the estate, rather than an
individual.
There are many factors and variables
to consider when determining whether
and what type of probate proceeding
is appropriate for an estate. A Will
remains a valid legal document for
four years after death. After that time,
if administration of an estate is neces-
sary, it will be handled as if there was
no Will. Therefore, if a loved one has
died, it is important to contact an at-
torney who handles probate to discuss
which of the various options is best
suited to meet your circumstances.
Lori Leu, Erin Peirce, Lauren Olson, and Laura Chavero are Elder Law attorneys with Leu & Peirce,
located in Plano, Texas. They can be reached at 972-996-2540.
COLLIN COUNTY Living Well Magazine | JULY/AUGUST 2017
15