Probate Procedures and Alternatives

probate alternatives
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Ideally every client has executed a Will. At the client’s death the attorney files an application to probate and swiftly moves through the probate process and administration of the decedent’s estate. Yet, we all know that this gold-standard scenario is not always the case. Accordingly, this article will explore some alternatives to traditional probate: the probate of a Will as a muniment of title, an heirship determination, and a small estate affidavit.

The probate of a Will as a muniment of title serves as a link in the chain of title that would otherwise not exist by a reason of the decedent’s death. This is especially useful if more than four years have elapsed since the decedent’s death. In such a case, a muniment of title proceeding can be utilized to settle the estate when it would not otherwise be possible. Although it is not a recommended practice, a muniment of title can also be used when there is no apparent need for a formal administration of an estate or for the appointment of a personal representative, but where there is a need to transfer title to those who will take under the decedent’s Will. In order to use this alternative to traditional probate and estate administration, the estate cannot have any debts. If the decedent applied for and received Medicaid benefits and the state has a claim for recovery, the muniment of title proceeding cannot be used. A good practice when probating a Will as a muniment of title is to file a certified copy of the Will and order admitting the Will to probate in the real property records of the county in which the property is located.

The Small Estate Affidavit, once approved by the court, serves as a legal document to identify a decedent’s heirs and their respective shares of the decedent’s property. This alternative is most oft en used for estates with small bank accounts and few debts. See Tex. Estates Code § § 204.001- 205.008. In order to utilize this alternative, the value of the estate’s assets, excluding homestead and exempt property, cannot exceed $75,000. Moreover, there cannot be a petition for the appointment of a personal representative currently pending or that has already been granted. This procedure requires two disinterested witnesses with personal knowledge, and all heirs must sign the affidavit. Once the affidavit is approved by the court, it is filed with the County Clerk, and certified copies of the affidavit are provided to third parties for the purpose of transferring assets.

A determination of heirship is the application of the laws of descent and distribution to a given set of facts. Tex. Est. Code Chapter 201. This alternative is a statement of the effect of the statutes on a given configuration of heirs to declare 1) who are the decedent’s heirs, and only heirs, and 2) the respective shares and interests of the heirs in the decedent’s property. Id. § 201(a)(1). A determination of heirship is used when the decedent left no Will or part of the Will failed, causing partial intestacy. An heirship determination carries additional costs due to the necessity of an ad litem attorney to represent unknown heirs. Further, there must be two disinterested witnesses available to testify in this proceeding. The heirs can agree to apply for the appointment of an independent administrator, however, if any heir is a minor, incapacitated, or cannot be located, there must be a dependent administration in which all actions will be supervised and ordered by the court.

Due to the reality that not all clients die with a Will or that more than four years have elapsed since the decedent’s death, a good estate planning and probate lawyer must know the alternatives to traditional probate and when to use them. Maira L. Gonzalez

Zerega Consulting
Zerega Consulting

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