Civil Law Practice

Houston Estate Planning & Probate Attorney 
AMALFI LAW, PLLC

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Houston Probate Attorney

In this difficult time, the last thing you may be thinking about is property.  However, property owned by the deceased may be necessary to support those left behind.  Unfortunately, many people are unaware of what legal and administrative processes and procedures must be performed after a death of someone who owned property.  Spouses and children may need access to funds that all of the sudden are frozen due to their loved one's death.  Sometimes property needs to be sold to make up for the lost income of a spouse or parent.  However, if the decedent owned a portion of the property, it can not be sold before certain legal procedures are accomplished.

WHAT IS PROBATE YOU ASK? 
Probate is the process by which a court legally recognizes a person’s death and authorizes the administration of his or her estate. This process typically must be completed whether the person has died with a Last Will and Testament in place, or whether no will existed.


PROBATE TERMS:

Decedent: This is the legal term for the person who has died and whose estate is in the probate process.

Will: This is the legal document in which a decedent has outlined how he or she would like assets distributed among their loved ones.

Estate:  An estate consists of all the decedent’s assets. These include, but aren’t limited to, cash, stocks, bonds, real estate holdings (homes, land, etc.), life insurance policies, retirement accounts, vehicles and personal belongings.

Beneficiaries: These are the loved ones named in a will, or determined by the court if there is no will, who will receive assets from the decedent’s estate.

Executor: When a person dies with a valid will in place, the document typically names a person to serve as Executor of the Estate. The chief duties of the Executor will be to inventory and itemization of the decedent’s assets; pay debts of the estate; pay taxes of the estate; file lawsuits for claims owed to the estate; and distribute assets from the estate to the beneficiaries as named in the decedent’s Last Will and Testament.

Administrator: When the decedent has passed on without leaving a valid will and no Executor has been named, Texas law requires that an administrator be named to carry out the duties of an Executor.

Letters Testamentary: Letter from the Court that is proof that the executor has the authority to act on behalf of the estate. 

Letters of Administration: Letter from the Court that is proof that the administrator has the authority to act on behalf of the estate. 


TYPES OF PROBATE


Independent Administration: The usual route when a decedent had a valid will, which named an Executor for the Estate. With an Independent Administration, the Executor has more freedom to carry out his or her duties without strict oversight by a probate court. With this type of probate, another key distinction is that the Executor is not required to post a bond, or insurance policy, for the estate. Sometimes an independent administration can be created if all of the heirs agree even if there is no will or no executor was previously named. 


Dependent Administration: When someone has died without a will, Texas probate law typically requires that the estate fall under a stricter oversight by the court known as Dependent Administration. The administrator is required to post a surety bond, seek court approval for every step in the process of distributing an estate, as well as filing detailed reports every year with a Texas probate court regarding the estate. 


Muniment of Title:  This process can be utilized when a valid will exists, the estate has no debts except secured real estate, and Medicaid has no claims against the estate to recover benefits the decedent may have received. With Muniment of Title, the court must determine that there’s no need for a probate administration and admit the will into probate as a muniment (or evidence) of title to the assets of the estate. No Executor is appointed, but the person who request the Muniment of Title must file a sworn statement with the court within six months verifying that the terms of the will have been carried out.  


Small Estate Affidavit: When a decedent had no will and the value of his or her estate is $75,000 or less, the heirs of the estate can file a Small Estate Affidavit (sworn statement) to collect the property without going through the probate process. There are certain conditions that must be met and the court will need to sign an order accepting it. 


Determination of Heirship:  A court proceeding filed to determine who the heirs of property are when someone dies without a will.  Texas law determines who the heirs are and what portions of the community and separate property they get.  The court appoints an attorney ad litem to research the family history to ensure all heirs have been included. The result is an order determining heirship which is used as evidence of ownership for any property that the heirs have inherited. Used alone it is similar to a muniment of title.  It can also be used when applying for an administration.  All heirs would need to agree for the administration to be independent. 


Affidavit of Heirship: This is also used when someone dies without a will. It however, is not prima facie evidence of the heirs until it has been on file with the county deed records for 5 years.  Even so, many title companies and other entities still accept it as proof of ownership if drafted correctly.