Texas Probate: An Overview

Texas is known (among lawyers, at least) for simple, efficient probate.

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Texas probate is notably simpler than many other states, thanks to something called the “independent administration” of estates. Using this process, most Texas executors wrap up estates with very little court supervision.

When Probate Isn’t Necessary

Assets that can be transferred to the new owner without probate include:

  • Community property with right of survivorship
  • Property held as joint tenancy with right of survivorship
  • Payable-on-death bank accounts
  • Life insurance proceeds
  • Survivor’s benefits from an annuity

Kinds of Texas Probate

Texas has two kinds of formal probate and some other simpler transfer procedures as well.

Independent Administration of Estates

Most Texas wills direct the named executor to pursue independent administration, because it’s quicker, simpler, and less expensive than the alternative, dependent administration. Even if the will doesn’t provide for independent administration (or there isn’t a will at all), the executor or administrator can ask the court for authority to act as an independent executor if all beneficiaries agree.

Independent administration means the executor:

  • does not have to post a bond (an insurance policy protecting the estate against losses caused by the executor’s careless or dishonest acts)
  • does not have to ask court permission before taking many steps to settle the estate, such as paying debts, setting aside a family allowance, selling estate property, and distributing assets to the people entitled to inherit them.

An independent executor still must publish notice to potential creditors and file an inventory of assets with the court. The executor must collect and safeguard estate assets until it’s time to transfer them to their new owners.

The executor is entitled to a fee (called a commission) of five percent of all money the estate receives and all money it pays out. Only transactions that have to do with managing the estate—for example, paying bills—are counted. Money that was in the estate at the time of death or that is distributed to inheritors is not counted.

Dependent Administration of Estates

It’s less common, but executors can also request dependent administration, which entails greater court supervision of the probate process.

Muniment of Title

The “muniment of title” process is a relatively simple and inexpensive way to transfer estate assets when there’s a will. (Tex. Prob. Code Ann. § 89C, which will become Tex. Estates Code Ann. § 257.001 on Jan. 1, 2014.) It can be used when:

  • there is a valid will
  • there are no unpaid debts, except those secured by  real estate, and
  • Medicaid has no claim against the estate for recovery of benefits received by the deceased person.

To get the process started, someone files the will, and a request to probate the will as a muniment of title, with the probate court. If the court decides there’s no need for probate administration, it admits the will into probate as a muniment, or evidence, of title to the estate assets. Essentially, the will serves as the document that transfers the assets to the persons or entities named in the will to inherit them.

The court doesn’t appoint an executor or administrator. The person who requested probate as a muniment of title, however, is required to file an affidavit (sworn statement) with the court within six months, stating that the terms of the will have been carried out (or, if some terms haven’t been carried out, which ones).

Small Estate Affidavits

In certain circumstances, the people who inherit don’t have to open a probate court proceeding or use a muniment of title. If there is no will and total value of the probate estate is $50,000 or less, then the people who inherit property can prepare a simple affidavit (sworn statement) to collect the property.

Small Estate Procedures

Texas executors can use a simplified small estate process if the value of the property doesn't exceed what's needed to pay the family allowance and certain creditors. (Tex. Prob. Code Ann. § 143; Tex. Estates Code Ann. § 354.001 as of Jan. 1, 2014.) The executor presents an accounting showing where the estate money went, and the court approves it and closes the estate.

Similarly, if, after expenses of the funeral and last illness have been paid, the remaining assets don’t exceed the amount of the family allowance, the court can issue an order of no administration. In that case the court assigns the estate assets to the surviving spouse and/or minor children. (Tex. Prob. Code Ann. § 141; Tex. Estates Code Ann. § 451.003 as of Jan. 1, 2014.)

Learn more about Texas probate shortcuts.

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