Denton County Living Well Magazine July/August 2019 | Page 39
A PRIMER ON. . .
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By 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 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 court-
supervised 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 on 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, Laura Chavero, and Zachary Stubblefield are Elder Law Attorneys
with Leu & Peirce, PLLC in the North Dallas area. They can be reached at 972-996-2540.
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