Nov

22

2017

Is There More Than One Type Of Probate? [Probate Q&A Video Series]

Posted by: Adair M. Buckner

When a loved one passes away, probate is the process used to distribute his or her property and assets. A question I hear often from clients is, "Are there multiple types of probate? And, if so, what type is right for me?"

In Texas, there are two broad types of probate. The type that will best suit your needs will depend on a number of factors.

In this video and blog, I discuss how these types of probate are different, the situations in which you would use both, and what steps you should take to start the probate process once a loved one has passed. Regardless of which type of probate is required, you should always work under the guidance of a trusted probate attorney.

What Are The Two Types Of Probate In Texas?

Texas provides two different types of probate: a full probate, also known as "formal probate", and a simplified probate, also known as a "muniment of title. The main distinctions between these forms of probate include the steps required, the time the process will take, the probate requirements, and the cost of the proceeding.

The Steps Involved In A Formal Probate

When you think of probate, a full probate is likely what comes to mind. This type of probate requires several steps, which should be followed under the guidance of a skilled attorney, to ensure your loved one's assets are distributed properly. These steps include:

  • Filing the Will with the court
  • Publishing notice to the creditors
  • Preparing an inventory and appraisement of the estate
  • Dealing with creditors' claims
  • Appearing before a judge

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Depending on the required oversight of the court, formal probate can either be independent administration of the estate or dependent administration of the estate. 

  1. Most Texas Wills call for an independent administration, which allows the executor to act independently of the courts. This means the executor is not required to post a bond or ask the court permission to settle the estate according to the Will. An independent executor will still need to follow the steps in the bulleted list above.

  2. A dependent administration is a less common form of formal probate. This process requires more court supervision. In a dependent administration, the executor cannot act for the estate without acquiring a court order authorizing the action.

The Steps Involved In A Muniment Of Title

The other type of probate, muniment of title, is a simpler and more affordable alternative to formal probate. With a muniment of title, all you have to do is file your loved one's Will with the court and appear before a judge. Essentially, a muniment of title is like a probate shortcut. 

Because it requires fewer steps, a muniment of title is much faster and more affordable. You can learn more about the average cost of probate in Texas in this blog. Unlike with formal probate, the courts will not appoint an executor, Instead, the person who requests probate be filed as a muniment of title will file an affidavit with the court stating the terms of the Will that have been carried out. This must be done within 6 months of starting the muniment of title process.

Which Type Of Probate Is Right For Your Situation?

There are several circumstances in which you will be able to use probate as a muniment of title rather than a full probate. A muniment of title can be used when:

  • There is a Will
  • There are no outstanding debts on the deceased's estate, other than liens on the real property
  • No other administration of the estate is required.

Formal probate will likely be required if the deceased's estate is more than $75,000, if there is no Will, or if there are unpaid debts on the estate that need to be resolved. If your loved one passed away without a Will and formal probate is required, you will likely need to follow a dependent administration of the estate.

If you believe your situation meets the requirements for a muniment of title, you will need to file the Will and request to probate the Will as a muniment of title. The court will review your case to decide if there isn't a need for formal probate administration. If so, the Will will be admitted into probate as muniment of title—essentially serving as the document that will transfer the assets to those named to inherit them. 

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Contact An Attorney To Ensure Your Loved One's Estate Is Probated Correctly 

In summary, there are two types of probate in Texas that can be followed to distribute a loved one's estate after he or she passes away. Formal probate is a longer, more complex process. On the other hand, probate as a muniment of title is a simple and affordable way to ensure your loved one's assets are distributed as required in the Will. The type of probate applicable to your situation will depend on a number of factors.

Navigating the probate process can be overwhelming. As always, it's a very good idea to work with an experienced probate attorney to ensure each step is followed correctly and you are able to take advantage of any shortcut available.

Watch the other videos in my Probate Q&A Series to learn more about the probate process:

If you need help probating a Will in the Texas Panhandle region, contact Adair M. Buckner using the button below to schedule a free initial consultation*. 

*(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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