Probate can be a confusing and often misunderstood area of the law. Probate is the legal process that occurs after someone (the “decedent”) dies. There are different types of probate:
If the decedent had a valid will that named an Independent Executor for the estate, the court shall go through the process to admit the will to probate, and the decedent’s wishes will be carried out by the Executor of the will. This can include paying any necessary taxes or creditors, collecting property and assets, and distributing the property or assets according to the terms of the will. The Executor essentially has the ability and freedom to exercise their duties without requiring the same oversight from the court that a “dependent” administration would require.
If the person died without a valid will, the estate can still be distributed but it will be through dependent administration, versus independent administration. There will be an Administrator appointed and they will be required to post a surety bond and seek court approval for every step in the process of distributing the estate. Therefore, this is a more time- consuming process than an independent administration involves.
Small Estates Affidavit:
When a person dies without a will and the total value of the estate is $75,000 or less, the “beneficiaries” of the estate can file a Small Estates Affidavit. A Small Estates Affidavit is essentially a detailed, sworn affidavit, that can be filed with the court in order to collect or receive property, bank accounts, etc., without going through the probate process.
Muniment of Title:
Texas has a process called Muniment of Title that can be utilized when a valid will exists and the estate has no debts (except those secured by real estate), and there are no potential Medicaid claims against the estate to try and recover benefits that had been paid. The Muniment of Title process is not overly complex, and it can be an inexpensive way to transfer assets of the estate. If the court determines there isn’t a need for a full probate administration, the will can be admitted as muniment (evidence) of title to the assets of the estate, and the assets can then be distributed according to the terms of the will.