When a person passes away, their estate needs to be processed and distributed in accordance with Texas law. As a surviving loved one, you may have questions about probate and if it’s necessary. Here is more information to help you understand the legal processes involved after someone dies and when an estate may need to be probated.
What Is Probate?
There are a number of procedures that can be used to handle the estate of a person who has passed away. Probate is just one of them.
Probate is a legal process during which a person’s assets are all gathered and debts paid prior to distributing their remaining assets to their beneficiaries. If there is a will, then the assets may be distributed according to the will. If there is no will, then Texas’s intestate succession laws will apply to the case.
Not all assets go through probate, which is important for families to understand. Some assets that may pass directly on to beneficiaries include:
- Life insurance benefits with a named beneficiary
- Retirement account holdings with a named beneficiary
- Jointly owned assets that are transferred to a surviving owner
- Assets in trusts
Not all estates will be valuable or large enough to go through probate. When that’s the case, an affidavit may be used in a simplified process. When an estate is small, certain types of assets, like the following, may pass on without the probate process:
- Payable on Death accounts
- Transfer on Death deeds
- Beneficiary designations
- Assets owned with a joint tenancy
It is up to your family to decide if you want to go through a formal probate process or muniment of title probate, which is a simpler form of probate used when the traditional formal method isn’t necessary.
Muniment of Title Probate
Muniment of title probate is helpful for simple, straightforward cases with a will. When someone passes away with a will in place, that will does have to be probated. Muniment of title probate is usually an option when there are no debts of the estate or actions requiring an executor. The purpose of this kind of probate is to validate the will and pass on title to the beneficiaries.
If your family member left behind no debt as well as cash accounts and real property, then muniment of title probate may be a good choice for you.
A muniment of title is not always the best choice when the estate holds:
- Publicly traded securities
Why? It’s normally required to have an executor handle these assets on behalf of the estate.
Understanding Independent Vs Dependent Administration
With probate, you have two options.
Independent administration is not a court-supervised process. It doesn’t require a bond or insurance to shield the estate in case of executor mismanagement. A probate notice does still need to be published, and an asset inventory has to be submitted to the court.
Dependent administration requires the court to monitor every step of settling the estate. If there are disputes, the court will help resolve them.
Using Small Estate Affidavits to Transfer Property
A small estate affidavit may be used to transfer property in some cases. The requirements to use an SEA are strict. These requirements are all listed in the Texas Estates Code Chapter 205, but some include:
- That there is no will
- That the value of the property (excluding exempt and homestead properties) is under $75,000
- That it’s possible to locate all heirs
- That all heirs are willing to sign the Small Estate Affidavit
There are additional requirements needed to qualify as well.
Learn More About Estate Planning and Probate
Texas has a simpler probate process than many states. Most people will use the independent administration process. Make sure you take time to learn more about your legal options before you decide which kind of probate to use moving forward.