Probate Law

THE PROBATE OF A WILL

Probate in Texas is the process whereby a Probate Court determines whether the document presented is a valid will. If the will contained no self-proving affidavit, the probate judge will need to verify that one or more of the witnesses who signed the will actually observed the signing of the will. If the will was not witnessed, and does not include a self-proving affidavit, the judge will need to interview two witnesses to establish that the will was written entirely in the handwriting of the decedent before the instrument will be admitted as a holographic will. The judge will also review the proof of death and other facts, as well as additional information.

In order to initiate the probate process, an application must be filed, and notice must be posted at the Courthouse for a period of two weeks. Assuming no contest is filed within that time, the Court is then able to move forward.

Once admitted for probate, all of the decedent's assets and property should be collected, their debts must be paid, and their remaining assets should then be distributed according to the desires expressed in their will. If the Probate Court does not find that a valid will exists, the decedent's property will pass according to the laws of intestate succession as outlined in the Texas Estates Code. It is very unlikely that the laws of intestate succession will distribute a person's property exactly as they would have liked. Therefore, it is very important to create a properly drafted will or another estate transferring instrument.

THERE ARE SEVERAL METHODS OF ADMINISTERING AN ESTATE IN TEXAS:

Independent Administration. Texas is a State that allows independent administration of an estate without Court supervision. Once the independent executor is approved and an inventory is submitted, the executor is able to administer the will without any further Court involvement.

Dependent Administration. In contrast to an independent executor, a dependent executor must seek the Court's permission for the transactions necessary as part of the probate process.

Muniment of Title. In cases where there are no debts, no need to appoint an executor, and there is no need for probate other than to clear title to property, a Muniment of Title allows for a simplified method of administration. When granted, a certified copy of the Court's Order Admitting the Will to Probate As a Muniment of Title, along with a certified copy of the Will, essentially acts as a new deed to real estate.

Small Estate Affidavit. In cases where someone dies without a will and the size of their estate is relatively modest (less than $50,000 excluding the homestead), and the estate has no more than two outstanding debts (totaling less than the total assets of the estate), then a Small Estate Affidavit may be a useful tool to avoid a more formal administration.

​There are also ways to avoid probate with some advance planning. Probate may be avoided through the creation of: a Living Trust, an Enhanced Life Estate "Lady Bird" Deed, and/or through payable on death or rights of survivorship bank accounts. It is also worth mentioning that life insurance and retirement plans pass to the named beneficiaries outside of probate.

​If you would like to learn more, please call (210) 807-4444 to schedule a consultation with an attorney at the Law Office of Jeramie Gertz, PLLC.

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