One of the purposes of probate is to prove that the decedent’s will is valid. In intestate cases (where the person dies without a will), the probate process will generally includes a proceeding for determining the decedent’s heirs.
For a will to be enforceable it must be admitted to probate. The order admitting the Will to probate signifies that (a) the Will is the decedent’s last will and testament; and (b) that the Will has not been revoked by a court or by the decedent. If the will does not appoint an Executor, the court will do so, and the Clerk will issue Letters Testamentary to the Executor. Where the decedent did not leave a Will, the Order generally appoints an Administrator for the decedent’s estate; the Clerk issues Letters of Administration to the Administrator.
Time Limits for Tyler Texas Probate
When a person dies leaving a Will, the Will should be probated within four years from the death of the Testator. There are some exceptions to the four year limitation. If your loved one passed away leaving a Will and more than four years have passed since their death, you should immediately contact an experienced probate attorney to determine whether or not one of the exceptions applies to your case.
Complex Probate
The Probate process becomes complex in the following circumstances:
(i) Where someone contests or challenges the will;
(ii) Where a court is confronted with different versions of the will; and
(iii) Where there is no will, i.e., the decedent dies intestate.
In cases where the original will is lost or misplaced, a copy of the will may need to be probated. However, a Texas Probate Court must be satisfied that:
(i) there is a reasonable cause for production of copy of the will (instead of the original); and
(ii) that the copy of the will is genuine and accurate.
Keeping in mind the complexities involved in the probate process, it is advisable to hire an attorney who has ample experience in handling complex probate matters.
Not All Wills Require Probate
Some Estates are intentionally structured to avoid probate, while others are intentionally structured to force a probate proceeding. In some cases a probate proceeding may be the only method of gathering the deceased assets for distribution to the beneficiaries or heirs. Without an evaluation of the Estate and the Estate’s assets by an experienced Tyler Texas Probate Attorney, it is difficult to know what is required to manage the deceased’s Estate.
Basic Types of Probate
1) Muniment of Title: This type of probate is usually used when the decedent’s estate is made up of only a home and a small bank account. There are either no debts or the debts are secured by liens on real estate. Further, there must be no legal necessity for a formal administration of the will by an Executor. The court order admitting the will to Probate as a Muniment of Title Only constitutes sufficient legal authority to all persons to pay or transfer estate property to the person(s) in the will as the beneficiary of the property.
2) Independent Administration
The Texas Probate Code allows for an Independent Administration of an Estate where a person provides in his or her Will that the Administration of his or her Estate shall be independent. An Independent Administration, in most cases, is preferred, as it minimizes the amount of Court intervention in the administration of the Estate and reduces the legal fees required to administer an Estate.
3) Dependent Administration
In contrast to the Independent Administration a Dependent Administration is closely supervised by the Court. The appointed Dependent Administrator is required to seek Court approval before taking most actions on behalf of the Estate. A Dependent Administration is very complicated, but it can be useful in some circumstances.
4) Court Created Indepenent Administration
The Texas Probate Code also allows for an Independent Administration where all of the beneficiaries or distributes under the Will agree that the Administration should be independent (Court-created Independent Administration). Or, in cases where the deceased did not leave a Will, the heirs or distributees of the Estate may agree on an Independent Administration. Where heirs, beneficiaries, or distributees agree on an Independent Administration, this agreement must be documented in writing and filed in with the Court.
5) Small Estate Affidavits
In some cases where the Decedent’s assets are truly minimal and a full probate administration is not necessary or it cannot be financially justified, a Small Estate Affidavit may be appropriate. This procedure is an inexpensive alternative that the heirs may consider as a means of accessing and distributing the Decedent’s assets.
Executors and Administrators
As a practical matter there are few differences between an Executor and an Administrator. An Executor is named in a deceased’s Will to serve as the Executor, while an Administrator is not named in the Will, but is appointed by the Court. Both the Executor and the Administrator, once appointed, are responsible for collecting the Decedent’s assets, paying the Decedent’s debts, and distributing the remaining assets to the Decedent’s beneficiaries. Additionally, the Executor and Administrator must prepare and publish notices to unsecured creditors and they must send notices to secured creditors. In some cases, the Executor and Administrator is required to prepare and file an inventory of the Estate’s assets and any claims against the Estate.
Heirs, Distributees, and Beneficiaries
Beneficiaries are the persons named in a Will that receive property or assets under the Will. An example would language in a Will that states “I give the sum of ($1,000.00) to my grandson.” The grandson is a beneficiary. In contrast to this, an heir is a person who is entitled to assets or property from an Estate where the deceased did not leave a Will. A person’s heirs are defined in the Texas Probate Code. A beneficiary may be an heir, but is not necessarily an heir. If a deceased made a gift in his will to a charitable organization, the charitable organization is a beneficiary, but not an heir. An heir is always a person who is related to the deceased. The relationship may be distant, such as a third cousin or a grand nephew. An heir is not necessarily a beneficiary.
Proceeding Pro Se
Many, but not all, Texas probate courts will not permit parties to proceed without an attorney (Pro se) in probate matters, even where the probate process is simple. You should consider hiring an experienced probate attorney to assist in complying with the complex requirements and formalities associated with a Texas probate.
