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Methods of Probate
(Excerpt from: Branyon, Keith, "Texas Probate." James Publishing, Inc. 2011.)
I. Selecting the Appropriate Proceeding
A. Analyzing the Choices: No probate with only non-testamentary accounts
The first decision is whether any type of probate proceeding is needed. For example, if the only asset owned by the decedent was a bank account with a non-testamentary designation on it (survivorship; pay on death), a probate action is not needed. Similarly, if the decedent's estate consists only of life insurance policies or retirement accounts, then no probate action is required if the policies and accounts each list the beneficiaries (individuals or charities) that survived the decedent.
Since the purpose of the probate process is to create a link in the chain of title between the decedent and the beneficiaries or heirs, no link is needed if there are no assets other than non-testamentary accounts.
Proceedings Must Begin Within Four Years
The initial factor to consider is the amount of time that has passed since the date of death. Letters testamentary or letters of administration cannot be issued after the fourth anniversary following the death of the decedent except where administration is necessary in order to receive funds or other property due the estate. In addition, a Will can only be admitted to probate after a four-year deadline when the party applying for such probate can show by proof that they are not in default in failing to present the Will for probate within four years of decedent's death. Another situation arises when the Will is admitted to probate as a Muniment of Title. In that instance, the applicant represented to the court at the Muniment hearing that there was no need for administration. If it is later determined that there IS a need for administration, the Texas Probate Code does not prohibit opening an administration if the second application is filed within four years from the date of death. If the subsequent application is filed to appoint one of the executors named in the Will, Texas Probate Code Sections 81 and 88 do not require an affirmative showing of a "necessity for administration." However, since the initial hearing contained testimony that no administration was necessary, it would appear that some testimony would be required regarding the change in circumstances. If the subsequent application requests the appointments of an administrator (or an administrator with will annexed) pursuant to Section 82, the applicant must have evidence supporting the need for administration both pursuant to Section 88(d) and to counter the previous testimony that no administration was needed. The types of Probate Administration
Most probate cases are handled as independent administrations in order to avoid increased costs and court involvement. Usually, an independent administration is created because the Will states that an Independent Executor can be appointed.
An independent administration can also be created when the Will is defective in some regard or when the decedent dies intestate, as long as the beneficiaries or heirs agree to this procedure. However, an independent administration should not be used if there are creditor problems, feuding beneficiaries, or difficult assets.
A personal representative named in a Will that is admitted to probate, and who serves in the capacity stated in the Will, is called an "executor." Any other personal representative will be called an "administrator." Whether the personal representative is called an "executor" or an "administrator," the position can be "independent" or "dependent." An Independent Executor is not subject to the supervision of the court. The only tasks required of an Independent Executor are to:
An Independent Administration has exactly the same duties unless a bond was posted. If a bond was posted, the Independent Administrator must file a closing affidavit in order to be released from the bond.Dependent Administration A dependent administration is a court supervised administration. Created in any probate situation, including:
- Notify general and secured creditors.
- Notify beneficiaries named in the Will.
- File an Inventory, Appraisement, and List of Claims or an Affidavit in Lieu of Inventory.
- Whether the decedent died testate or intestate.
- Even where the Will calls for an independent administration, or where an agreement between the beneficiaries for independent administration is obtainable.
A dependent administration may be preferable if there are creditor problems, feuding beneficiaries, or difficult assets. Since the dependent administrator is subject to court supervision, no task can be undertaken unless it has been approved in advance.
Court supervision can be burdensome, and thus a dependent administration is more expensive than an independent administration. However, the court approved actions of a dependent administrator are insulated from attack by creditors and beneficiaries.
Muniment of Title
A Will can be probated as a muniment (or record) of title if the decedent dies testate and the only unpaid debts are those that are secured by liens on real estate. With a muniment of title, there is no administration of the estate. In fact, though the applicant may be the person designated in the Will to serve as the personal representative, the court does not appoint an executor or administrator. The probate process is completed at the hearing to admit the Will. Since there is no personal representative, there is no requirement to notify creditors, to notify beneficiaries, or to prepare and file an inventory.
This type of "short-form" probate will not work if the estate is subject to federal death tax or if there are assets that cannot be transferred to beneficiaries without the involvement of an executor. Moreover, if it is necessary to file a final income tax return for the decedent, a Muniment of Title proceeding should not be chosen since there will be no one authorized to sign the return.
There are a few other options for probate - determination determination of heirship, affidavit of heirship, community property administration, and small estates - but these are far less popular given the atypical nature of the events leading up to one's need for probate.
Information in this article is provided for general informational and educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences