FAQs - Questions we encounter often

"Probate" is the process of settling the estate of a person who has died.  In simplest terms, this normally involves a 2-step process of (i) determining if there is a valid Will and making a determination of who is entitled to the decedent's assets (either with a Will or without a Will), and (ii) if required, "administering the probate estate", which means finding all of the assets, determining all of the debts, making sure that valid  debts are paid, and then  distributing any remaining assets to the persons entitled to them.  If there is a will, having the will "admitted to probate" means having a Texas court accept that document as a valid will of the decedent.  If there is a valid Will, there is either an estate administration, or the estate can pass to heirs without an administration through a process called "probating the will as a muniment of title" (see the question on muniment of title below).  If there are expenses to be paid and other factors require an administration, "administering the probate estate" is the process of making sure the decedent's liabilities are paid, and the remaining assets  distributed to the persons entitled to the assets.  If there is no will, there has to be a probate administration, unless the estate falls within a "small estate" exception (see the question on small estates below). 

As discussed in the prior question, the process of "probate" is to settle the estate of a person who has died.  As in all states, the State of Texas, through its probate laws, wants to make sure that when a person dies, that person's valid debts are paid out of any assets owned by the decedent. Once valid debts are paid, the State of Texas then wants to make sure that any remaining assets are distributed to those persons entitled to the assets.  If there is a valid Will, then the Will dictates how the assets are distributed. If there is no Will, then the person is deemed to have died "intestate" (i.e., without a will), and the assets are distributed according to the rights of succession as set forth in the Texas Estates Code.  This entire process of determining if there is a valid will, determining decedent's valid debts and assets, and paying debts and distributing remaining assets to heirs or decedents, is generally referred to as the probate process.  This process is, to a greater or lesser degree, supervised by and through the respective Texas county courts. 

If there is a valid will, in all cases part of the first step is to validate the will.  Once the will "proved up" and validated, Court supervision varies as follows: - - if the will is probated as a muniment of title (no administration needed) there is no further need for court supervision;

- if the will is probated as an independent administration, there is minimal supervision, and the executor (or administrator in certain instances) can take most all actions and only needs to file certain reports. 

- if the will does not grant independent powers (and all heirs do not agree to allow independent administration), most executor/administrator acts need court approval. 

- if there is no will, all actions need court approval, in addition to the court having to approve the identity of all heirs.  However, if all heirs agree, then the court may allow independent powers. 

- If there is no will ,and there are limited assets and no debts, a process called an "affidavit of heirship" or a "small estate affidavit" may be available. 

It all depends on how much work is involved.  There are legal fees and there are court costs. Court costs will average $400-$450 for a probate proceeding, which generally includes filing, publication and posting fees.  If there is a valid  self-proved will, this office will complete a probate of a will as a muniment of title for $1,000 plus fees/costs, and will complete a probate of a will with independent executor powers for $1,150 plus fees/costs.  Probating a will with full court supervision takes more time, depending on how many court appearances are required.  If complications arise, for example the original will cannot be found, or the probate is more than 4 years after date of death, that takes more time and thus costs a little more.  There are many other factors to consider, which in total are too numerous to discuss here at length.

Generally 4 years.  There are certain exceptions, but generally if the will has not been probated within the 4 year period, the decedent is deemed to have died intestate. 

A muniment of title is when the Will is recorded in the county court records, and that Will is deemed to be an instrument transferring title of decedent's assets to the beneficiaries as is directed in the Will.  Under Texas law, when a person dies, that person's assets immediately and automatically transfer to the beneficiaries (also known as "devisees") named in the Will. The problem is, the devisees need to prove to other entities (a bank, stock brokerage, title company, etc.) that he or she is now the owner of those assets.  Those third parties need proof of a devisee's claim, and they need a court order to protect them from liability when they release assets to a devisee.  When a court issues an order admitting a Will to probate as a muniment of title, that court order, which includes a copy of the Will, can then be handed to the third party, and the third party is directed to transfer the assets to the person or persons as set forth in the Will.  If the third party is a title company, the title company can rely upon the court order to issue a policy of title insurance if the devisee sells the property at a later date. 

It is an affidavit that has to be approved by the court, and can be used to settle the estate of a decedent that died intestate (without a will).  A court has full discretion to approve or not approve a Small Estate Affidavit, and some courts have policies of not approving a Small Estate Affidavit, or greatly limiting their approval.  At a minimum the affidavit must show the following are satisfied:

      - decedent must have died without a will;

      - the estate is solvent.  The affidavit needs to list all assets and liabilities of decedent, needs to identify if those assets are community or separate property, and the assets must exceed liabilities;

      - the estate assets, not including the value of any homestead property, must be less than $75,000;

      - any real property has to have been the homestead of decedent and the heirs;

      - the affidavit must include the names of all heirs, and must be signed by all distributees and two disinterested witnesses. 

As a result of the limitations set forth above, in practice the Small Estate Affidavit is used less than might be expected.  It is generally used in a marital situation where the surviving spouse continues to occupy the homestead, or in more rare instances, in a parent/child situation where the surviving child will continue to occupy the homestead.  The benefit of a Small Estate Affidavit compared to an Affidavit of Heirship is that a Small Estate Affidavit can also transfer non-real estate assets such as a bank account, whereas an Affidavit of Heirship is limited to the transfer of real estate.  However, the benefit of an Affidavit of Heirship is that it can be used for non-homestead real estate, so if there are no bank or other depository accounts that need to be transferred, an Affidavit of Heirship would be used.  

It should be noted that neither a Small Estate Affidavit nor an Affidavit of Heirship is a court order directing the transfer of assets, and on that basis, there is no requirement that third parties such as title companies or banks are required to accept these affidavits as proof of valid title. This is especially the case with non-Texas entities where these procedures are less well known.  It is best to check with the title company or other institution first, to see if they will accept either of these procedures, before taking the time and effort to do either of these.