The probate process ensures a deceased person’s estate is distributed to heirs and designated beneficiaries, while any debts are paid off. Property passed down through the probate process will be distributed according to the decedent’s last will and testament; however, if there is not a written will in place (also known as dying intestate or without a will), Texas law will determine the distribution of assets. The more common types of probate administration and procedures in Texas include:
Independent Administration of Estates
In an independent administration of an estate, the executor/administrator usually is not required to post a bond nor does he or she have to ask for court permission prior to taking steps to settle the estate. This includes paying off debts, setting aside a family allowance, selling estate property, and distributing assets to those entitled to inherit them. An independent executor/administrator is required to publish notice to potential creditors and file an inventory of assets with the court or an affidavit in lieu of inventory. The executor must then collect and safeguard estate assets until it is time to transfer them to the new owners. This type of administration allows executors/administrators to settle a decedent’s estate with little court supervision. However, an executor/administrator can only serve independently if the will states that an independent administration is allowed or if all the beneficiaries/heirs of the estate agree to an independent administration.
Dependent Administration of Estates
A dependent administration will result if circumstances do not allow for an independent administration. A dependent executor/administrator serves with court supervision of the probate process. Although dependent administration is more time-consuming and costly, it is sometimes required when beneficiaries cannot get along or when court oversight is necessary. Dependent administration also provides more stringent requirements for creditors to which the estate owes money – so this method is sometimes preferred when the estate owes considerable debts.
Muniment of Title
Texas probate lawyers frequently use muniment of title proceedings to administer an estate quickly. A muniment of title proceeding can be used if a decedent died testate (leaving a will). A will can be probated as a muniment of title if the only unpaid debts are those secured by liens on real estate. This type of procedure allows for the transfer of estate property to the beneficiaries named in the decedent’s will without the need for estate administration. If the court finds no need for probate administration, it will admit the will into probate as a muniment, or evidence, of title to the estate assets.
In addition, generally a court cannot admit a will to probate if the application to probate the will is made after the fourth anniversary of the decedent’s death. However, a will can still be admitted to probate as a muniment of title if the will proponent can show a lack of default. Default means a failure to absence a reasonable diligence on the part of the party offering the will to probate as a muniment of title.
Small Estates Procedure
A small estates procedure is available if the decedent died without a will and the value of the estate (excluding homestead and exempt property) does not exceed $75,000. This procedure is not available if the decedent owned real estate other than a homestead. A small estate affidavit is filed with the clerk of the appropriate court and must be examined by a judge. If the court approves the affidavit, a copy of the affidavit can be used by the heirs to collect the assets of the estate.
Guardianship is a probate court proceeding in which one person seeks to obtain legal authority to make decisions for another person. The guardian is the person appointed by the court to make decisions on behalf of someone else. The person over whom the guardianship is granted is referred to as the protected person or ward. Sometimes families agree on a guardian, but other times, family members may fight over the appointment of a particular guardian.
Guardianship proceedings may be necessary in a variety of circumstances, including:
- For a child in the event there is no parent available to care for them.
- For an incapacitated adult who is unable to take care of him or herself due to mental deficiency, disease, mental incapacity, or physical condition.
Types of Guardianship
The Texas Guardianship Association defines guardianship as “a legal process designed to protect vulnerable persons from abuse, neglect, and exploitation.” Both minors and incapacitated adults can need a guardian in various situations. In Texas there are several types of guardianship, including:
- Guardian of the Person: Guardian is appointed to make personal, medical, and welfare decisions for a ward.
- Guardian of the Estate: Guardian is appointed to make financial decisions related to a ward’s assets.
- Guardian of the Person and Estate: The guardian is responsible for managing the care and property of the ward.
- Temporary or Emergency Guardianship: can be appointed while awaiting the court’s decision over the ward.
Seiler Mitby can help you arrange your affairs so that the transfer of assets at the time of incapacity, illness or death is accomplished in the most efficient manner.
Our attorneys can answer questions and provide advice regarding your estate planning needs. We prepare documents tailored to your specific situation, including:
- Selecting an individual to carry out your wishes
- Streamlining the transfer of your assets after your death
- Identifying the recipients of your assets
- Authorizing someone to make medical and financial decisions on your behalf; and
- Designating your method of treatment in the event you are diagnosed with a terminal or irreversible medical condition
Probate and Guardianship Lawyers in The Woodlands
Probate and guardianship proceedings can be quite cumbersome. Ensuring a deceased loved one’s estate is disbursed as they would have liked and maintaining guardianship of a child or incapacitated adult both require legal assistance. At Seiler Mitby, our experienced probate and guardianship attorneys guide clients with knowledge and compassion. If you or a loved one needs assistance with probate and guardianship, contact the lawyers at Seiler Mitby today.