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Blogs from June, 2023

Probate
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Traditionally – across America and even going back to centuries-old English law – Letters Testamentary have always been the ultimate authority from a court so that an executor can settle a decedent’s estate.

Modern Texas law has attempted to create other probate processes that can sometimes be used to settle an estate. However, the reality is that these “shortcuts” haven’t provided the “easy probate process” that clients hope for. We’re seeing more and more instances where financial institutions are refusing to accept anything other than the traditional Letters Testamentary. Here are some of the non-traditional probate processes that are provided for under Texas law, but aren’t consistently accepted by institutions holding the decedent’s property:

  • Muniment of Title: If there is a valid will and the estate has no debts, sometimes this process can be used to settle title to some property without the full administration required with Letters Testamentary. While this process has previously been used to successfully transfer Texas real estate, there are no guarantees that it will be accepted by a title company for real estate transfers. It is very unreliable to transfer out-of-state real estate and/or any assets with financial institutions.
  • Determination of Heirship without Administration: If there is no valid will and the estate has no debts, sometimes this process can be used to settle title to some property without the full administration required with Letters of Administration. This process has previously been used to successfully transfer Texas real estate, but there are no guarantees that it will be accepted for settling title on out-of-state real estate and/or any assets with financial institutions.
  • Small Estate Affidavit: If there is no valid will, the estate is worth less than $75,000, all heirs will actively participate in agreement, and the estate is not in debt, sometimes this process can be used. Generally it can be done with no hearing and no administration, so it sometimes saves cost and time requirements. However, not all title companies or financial institutions will accept a judge’s order on a Small Estate Affidavit. Additionally, because the requirements are so strict, if new information is discovered during the process, there is a chance that the estate might not be able to be settled by a Small Estate Affidavit and we might have to start over with a Determination of Heirship with Administration.
  • Affidavit of Heirship: Sometimes, if the decedent’s date of death is more than 4 years ago, some institutions will accept an Affidavit of Heirship to transfer property to the heirs at law. Those heirs will have to sign off on any sale of real property. This option is the least legally sound, but satisfies the requirements of some private institutions that hold the decedent’s property.

Multiple factors have contributed to more and more unpredictability when it comes to settling a decedent’s estate. Do not assume that information from your neighbor or co-worker or cousin about their experience with probate will be the same as yours. It’s very important that you talk with an experienced probate attorney to determine the best way to achieve the best resolution for your specific situation.

For any probate process, there are many unknowns and no guarantees. Courts often change their processes (sometimes without notice), judge’s opinions are the prevailing opinions, and third parties can cause delays and complications that are unexpected. 

Contact us at (972) 560-6288 to see how we can help you plan your estate and avoid probate courts.