A Primer on Probate
Courtesy Leu & Peirce , PLLC
Losing a loved one is never easy . Many people describe the weeks and months following such loss as “ a blur .” After notifying family 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 transition 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 individual without the need for probate . Importantly , and despite common belief , title to real property listed in more than one name does not automatically pass to the survivor . Therefore , probate 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 administered . Texas has two types of formal probate procedures . Most probates are handled as independent administrations , 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 courtsupervised administration . If there is no Will , or if the Will does not provide for an independent administration , then the administration will be “ dependent ,” unless the beneficiaries agree otherwise . Dependent administrations tend to be more expensive , since the administrator must seek court approval for every major decision . However , this added burden and expense may be preferable to protect the administrator if the estate has multiple creditors or feuding beneficiaries .
An “ executor ” is a personal representative 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 estate . The individual named in the Will has first priority to serve as executor . However , the judge may refuse to appoint an individual named in the Will if the judge finds that person to be unsuitable .
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 . Collecting and protecting estate assets is the primary job of the executor , who should care for the property of the estate 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 addition to independent and dependent administrations , Texas law allows for another simple probate procedure known as a muniment of title . A muniment 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 individual was not receiving Medicaid benefits prior to death . This proceeding 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 expensive . 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 insurance 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 necessary , it will be handled as if there was no Will . Therefore , if a loved one has died , it is important to contact an attorney 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 .
36 DENTON COUNTY Living Well Magazine | JULY / AUGUST 2017