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Probate Options in Texas



By Sam A. Moak


The information in this column is not intended as legal advice but to provide a general understanding of the law.  Some of the information in this column was prepared by the State Bar of Texas and is reprinted in this column with permission.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

 Estate administration is the management and settlement of an estate by a personal representative approved by the court.  Estate administration may not be necessary when the deceased person’s (decedent’s) estate is so small that no action is necessary to distribute the property to the beneficiaries or heirs.  However, estate administration is required in most other circumstances.

 If the decedent had a will it should name an individual to carry out the duties of administering the estate.  The individual named in the will to carry out the administration is called an executor.  If the will does not name an executor, then the court will appoint one.  If the court appoints such a person because the will does not name an executor or the decedent died without a will, that person is called an administrator.  Either way, the executor or administrator has to be approved by the court and has legal obligations and duties to the court and those who receive property from the estate.  If the executor or administrator acts improperly, he or she may be held liable for any resulting damages and his or her appointment may be terminated by the court.

 In Texas, there are several different methods of administering an estate.  Texas is one of the states that provides for independent administration.  This is administration free of court supervision.  This means that after an independent executor or administrator is approved and an inventory of the estate assets is filed with the court, the executor or administrator can simply take care of the administration of the estate without any further court involvement or supervision.

 If there is no need for the appointment of an executor or administrator and the only reason for probating a will is to clear title to property, a will can be admitted to probate as a muniment of title.  Under this procedure, there is no executor or administrator appointed.  It is a somewhat simplified method of administering an estate than the traditional formal administration.  This is not for all estates due to certain requirements, therefore you should contact your attorney to see if your situation applies.

 If the value of the estate, excluding the homestead, exempt personal property, and non-probate assets, does not exceed $50,000.00, no formal administration is necessary if the heirs file an affidavit with the court showing they are entitled to receive the property of the estate.  In addition to the $50,000.00 ceiling, the small estate affidavit procedure is available only if the assets of the estate, excluding the homestead and exempt personal property, exceed the known liabilities of the estate.  One limitation on the small estate affidavit is its general ineffectiveness to transfer title to real property.  The small estate affidavit is effective to transfer title to a homestead if the homestead is the only real property in the estate.  However, if the estate contains any real property other than just the homestead, the affidavit will not clear tile to any of the real property, including the homestead.

 Informal family settlements is another option.  They are permissible where the estate is small and consists only of personal property, such as personal effects and household furnishings, but generally not where the estate includes bank accounts, stocks, and bonds.  If a motor vehicle is involved, a new certificate of title may be applied for by filing an affidavit of heirship with the Texas Department of Public Safety.

 Texas offers many different ways to probate an estate and therefore you should contact an attorney for assistance on what route may be best in your particular situation.

 Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.