Probate is the orderly process of winding up the business affairs of a person who has passed away. The Court determines whether a testamentary document is the true last and valid Will of a Decedent through the completion of certain requirements. Probate assets are assets controlled by the Decedent’s Will and/or estate, including assets titled in the Decedent’s name without a designated beneficiary. The successful completion of probate distributes probate assets amongst beneficiaries, creditors, and any others with a valid interest in a Decedent’s estate.

When Do You Apply for Probate?

The probate of a Will is available when a Decedent dies testate, i.e. with a valid Last Will and Testament. Usually, it is necessary to probate a Will if creditors need to be paid, property needs to be collected, or if assets need to be distributed to beneficiaries. The most common form of probate occurs when a Will nominates an Executor to administer the estate in accordance with the provisions of the Will.

How Do You Apply for Probate?

The judicial probate process begins with the filing of an Application to Probate Will and for Issuance of Letters Testamentary (Application). This application is filed with the county clerk. Typically, an Executor named in a Will applies to the Court requesting the admission of the Will to probate. However, Texas Estate Codes (TEC) allows any “interested person” also to apply. The TEC definition of “interested persons” includes heirs, spouses, devisees, creditors and any others having a claim against the estate being administered.

You Can’t Take It With You

Death affects people in many ways. It never is timely. Death confronts the family with bereavement, with the need to readjust emotionally and financially, and often with an unknown future. Death is not only a personal issue but a legal one as well. A death certificate must be issued, and the estate of the deceased individual (the decedent) must pass to others.

An estate consists of the property, both real and personal, which the decedent owns at the time of death. Real property includes land and improvements located on the land. Real property also includes oil, gas, and other mineral interests. Personal property is all property other than real property, including cash and bank accounts, clothing and personal effects, household furnishings, motor vehicles, stocks and bonds, life insurance policies, and government, retirement, or employee benefits.

Upon death, title to the decedent’s property passes immediately to the beneficiaries under the decedent’s will or to the heirs-at-law if the decedent died without a will. However, there must be an actual transfer of ownership of the property by proving the will in court or, if there is no will, by having a court determine who are the decedent’s heirs. The purpose of court involvement is to protect the rights of the family, those entitled to receive property, and the creditors of the decedent’s estate.

Therefore, although title to property passes immediately at death, the assets of the estate are subject to the control of the executor or administrator of the estate for the purpose of settling the debts of, and claims against, the estate.

After the payment of debts and claims, the remaining assets are distributed to the decedent’s beneficiaries or heirs-at-law. If the decedent died with a legally valid will, then his or her property is distributed according to his or her wishes as expressed in the will. On the other hand, if the decedent died without a will or if the will is declared invalid, the estate is distributed to the decedent’s heirs as determined under Texas law. The decedent’s heirs may not be the persons to whom the decedent wished for his or her property to pass.

Dying Intestate (Without A Will)

In Texas, property is characterized as separate or community. Separate property is that which is owned before marriage or acquired during marriage by gift or inheritance. Damages awarded during marriage from a personal injury lawsuit, except damages representing the loss of earning capacity, also are separate property. Community property is all property, other than separate property, which is acquired by either spouse during marriage. Thus, there can be separate real property, separate personal property, community real property and community personal property. When a person dies without a will, the law determines who are the heirs, and assets are disposed of according to whether they are community or separate property.

Distribution of Community Property

Community property, whether real or personal, is distributed in this manner:

If the decedent is survived by a spouse and children (or descendants of deceased children):

  1. If all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse, all of the community property passes to the surviving spouse.
  2. If any surviving child or descendant of the deceased spouse is not also a child or descendant of the surviving spouse, the deceased spouse’s one-half of the community property passes to his or her children (and the descendants of any deceased child), and the surviving spouse retains the one-half of the community property he or she owned prior to the other spouse’s death. However, the surviving spouse has the right under Texas law to use and to occupy the homestead during his or her life and may have the right to use or own certain items of personal property that are exempt from creditors’ claims.

Muniment of Title

If the Decedent had a Will, but did not have any creditors whose loan was not secured by real property belonging to the estate, there is no need for administration of the Decedent’s estate. The Will can be probated as a Muniment of Title.

Like the probate process, the Court must rule on whether the Will is valid, therefore, a hearing is necessary with a Muniment of Title, thus the Applicant, who could be the Executor named in the Will or any interested party, may make application and schedule a hearing with the Court. However, unlike probate, with a Muniment of Title, no Administrator/Executor will be appointed. Instead the Will itself shows who owns estate assets. A Court will approve a Will as a Muniment of Title if the Applicant can show the following:

  1. That the estate has no unpaid debts, except for debts secured by liens on real estate; and
  2. That there is no necessity for administration, because there are no creditors.

Once the Court enters an order admitting the Will to probate as a Muniment of Title, the estate beneficiaries can move forward to transfer the Decedent’s assets into their names with legal authority.

Judicial Declaration of Heirship

When someone dies without leaving a Will, the most commonly used estate settlement proceeding is a judicial declaration identifying the heirs of the Decedent. In a judicial declaration of heirship, the Court makes a formal declaration as to the identity of the Decedent’s heirs, and the percentage each heir owns in the estate. The judgment allows the Decedent’s property to be divided and distributed among the heirs. The Court’s formal declaration is final.

The judicial declaration of heirship can avoid the probate process, but it also is used in conjunction with dependent administration, when someone passes away intestate (without a Will). A judicial declaration of heirship is also utilized when the Decedent died with a Will, but failed to dispose of all the estate assets. Thus, the Decedent technically died partially testate and partially intestate, and an heirship proceeding may be required to determine the legal owners of any remaining estate assets.

An heirship proceeding may be utilized when more than four years have elapsed since the Decedent’s death. Even if a Decedent had a Will, if the applicant does not probate the Will within four years from the Decedent’s death, then an heirship proceeding may be required if the Court will not admit the Will to probate as a Muniment of Title.

It is important to note that a judicial declaration of heirship is time-consuming and often costly alternative to probate. The Court is required to appoint an attorney ad litem to represent the unknown heirs, and that attorney will report his or her findings to the Court at the determination of heirship hearing. The Court also requires two disinterested witnesses to testify as to the Decedent’s family history at the time of the hearing.