Do I Have To Probate If There Was A Will?

Posted by: Adair M. Buckner

I frequently am contacted after the passing of a loved one about whether a probate of the loved one's Will is necessary or not. The answer is the standard attorney's reply, "It depends." 

I have addressed in another blog several steps that can be taken as part of the estate planning process to help avoid the need for probate. Even if those steps were not taken, however, a full probate still might not be needed in Texas. Texas has several shortcuts or alternatives to full probate.

Sometimes, if your loved one has no assets that are not already disposed of by beneficiary designation or payable on death provisions, there is no need to probate a Will. This frequently happens if the loved one has already sold the home and is residing in a nursing home, and the only assets he or she still owns are liquid assets. However, if there is real estate still owned by the deceased or oil and gas interests that are not in a trust, some form of probate may be required to transfer the assets. 

family grieving at funeral

If a full probate or "independent administration" of the estate is required, there are a number of legal steps that must be followed, and the procedure may take several months or more to resolve. The intricacies of a full probate can be demanding on those handling the estate and can cost a fair amount of money, depending on the complexity of the estate.

If you would like to know more about the full probate process, feel free to download my free probate flow chart.

A full probate of the estate may not be necessary, though. Texas law allows alternative procedures to handle the passage of an estate that are quicker, less involved, and less expensive than a full probate. You should discuss with your attorney whether something less than a full probate will accomplish your needs. These are two alternatives:

  1. Probate as a Muniment of Title
  2. Affidavit of Heirship

Probate as a Muniment of Title

This very strange-sounding name means a probate to reflect the passage of the title. Probate as a muniment of title is still a court-administered probate proceeding, but it is much simpler than a full probate. This procedure can only be used if there are no outstanding debts of the estate, except those secured by liens on real estate.

All that is required is the following:

  • The Will be filed with the application for probate as a muniment of title
  • A citation be posted at the courthouse for at least ten days
  • The applicant appears before the county judge for one simple hearing to admit the Will to probate as a muniment of title 
  • The judge enters an order for probate of the Will as a muniment of title, which directs any third parties holding assets of the deceased to transfer them to the persons named in the Will

Nothing more needs to be done than filing certified copies of the probate documents in any county in which the deceased owned real estate other than where the probate was filed. The probate is automatically recorded in the real estate records of the county where the probate was filed. The probate documents can be presented to other third parties, such as banks or investment companies, to require them to transfer assets as provided in the Will.

The cost of this simplified probate can be significantly less than a full probate. Here's a blog discussing the cost in more detail.

Affidavit of Heirship

This is a statutorily authorized procedure in Texas, and it is widely accepted by third parties to transfer assets as provided in the Will. The Affidavit of Heirship is merely a document drawn up by the attorney that sets out facts that would establish heirship of the beneficiaries under Texas law. A copy of the Will is then attached. The affidavit is filed in the official public records of any counties where the deceased person owned real estate or mineral interests.

The affidavit must be signed by the heirs (preferably all the heirs, but this is not always required). Two independent witnesses who can swear that they knew the deceased person for an extended period of time and that the facts of heirship recited are correct must also sign. All of the signatures must be notarized.

Occasionally, a third party will not accept the affidavit. You should go over what assets are involved in the estate with your attorney before the affidavit process begins. If the affidavit can be used, it is much less expensive than the typical probate cost. However, getting all of the signatures and all of the necessary facts gathered, and finding two independent witnesses who can confirm the facts, may be more trouble than the money saved.

Probate for each state is different. You should consult an attorney in the decedent's home state to know exactly what is required. If you would like to discuss whether a probate or one of these probate alternatives is appropriate for your deceased loved one in the state of Texas, contact Adair M. Buckner for a free initial consultation*.

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*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

** This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal, or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.


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