Alston And Engelhaupt Blog

Probate Law Questions and Answers

John Steadman - Tuesday, February 18, 2014

1. What happens when a person passes away without a will?

A death that takes place without a corresponding Will, is governed by the Texas Estate Code and depends on whether or not the deceased is married, has children, or who their heirs are. The Texas Estate Code provides for almost every kind of variable imaginable to make sure that if a resident dies without a Will, their estate can be administrated and distributed to their surviving family members depending on their relationship to the Decedent.

For instance, if the deceased is a single, only child and dies in the state of Texas without a Will, the estate of the deceased will be distributed to that person’s parents in equal shares. But, if the parents are deceased and the person had siblings, then the share passes to the siblings. What happens when you die without a Will is entirely dependent on the statutory language of the Texas Estate Code and whom you leave behind.

2. If I have a disabled child and they are turning 18, do I need a guardianship?

When many children turn 18 it is a right of passage. Legally they are allowed to make decisions for themselves, without the consent of their parental guardians. Typically this is a complex time of transition, however, that complexity increases exponentially when that child is also disabled.

A legal guardianship is often sought for the adult disabled child, and allows the parents of that child to make financial and medical decisions (along with other powers) for that child. If the adult disabled child does not have the capacity to give consent for medical procedures, then the procedures may be indefinitely delayed. If a Guardianship of the person is done through a legal proceeding, then the Guardian may give consent for the disabled person. Legal guardianship is a powerful assignation, and is only allowed after the Court decides if such an assignation is necessary in regards to the adult disabled child subject.

Before you seek legal guardianship discuss the necessity of the option with a licensed attorney to understand the requirements and responsibilities of a Guardianship.

3. I’ve heard the term “Muniment of Title”, what does that mean in Probate?

When a person dies their estate is scrutinized from all sides. From the financials institutions that the deceased banked with, or the creditors the deceased owed money to, the totality of their estate and debts becomes crucial to understanding how to probate a Will.

If the deceased has no outstanding debts, probating the Will is a much more simplistic task. A “Muniment of Title”, is a document that is filed with the Probate Court that asks the court to 1) validate the Will and it’s contents, and 2) notify the court that the estate has no debts and the contents of the estate are ready to be transferred to the beneficiaries named in the Will.

After the Probate Court reviews the Muniment of Title, the Judge may issue an Order Admitting the Will as a Muniment of Title. Accordingly the beneficiaries of the estate may use a certified copy of this Order to notify various authorities (like the county clerk) that property from the estate is ready to be transferred into the hands of the beneficiary (or beneficiaries).

The major drawback of a Muniment of Title is property outside the state of Texas, specifically accounts held in financial institutions. Since the Muniment of Title is specific for Texas, out of state institutions may not recognize it and require Letters Testamentary to distribute the funds held.

Filing a Muniment of Title is not always appropriate and should be filed by a licensed, experienced Probate attorney, and only under the right circumstances. However, if a Muniment of Title is right for you it can simplify the process, saving both time and money.

4. What happens if the named Executors in a will are deceased?

An executor is a fundamental part of the administration of the estate of the deceased so much so that it is required by law to name such a person to makes sure the estate’s property is protected before it can be administrated. The duties of the executor include taking an inventory of the estate, paying the estate’s creditors and finally dispersing the assets of the estate to the beneficiaries, according to the will.

The Estate laws of the state of Texas allow for the beneficiaries or “distributees” of the deceased to collectively designate and apply for an independent administrator to be approved by the Probate Court. Should all parties be in agreement of the proposed new executor the Probate Court will issue an order granting such independent administration, allowing the appointment of an individual, law firm, or corporation to act as the new executor. However, if the Court thinks the new executor will not be acting in the best interest of the estate they may deny the motion and force all parties to go back to the drawing board.

5. How long does Probating a will take?

The time it takes to conclude the administration of a deceased person’s estate is in direct relation to a number of different variables including how many debts the estate may owe (via taxes, creditors, or otherwise) and the descendants themselves. However, a timeline, with due dates can be seen throughout the existing Texas Estate Code.

If there is a valid will, the Court will post the application for 20 days, to let a person with standing contest the application. After that time has passed, a hearing is set to appoint the Executor/Administrator. When the hearing is completed, there are certain requirements for creditor claims to run. The Court will usually set the term for probate at 6 months. Assuming everything goes well, I usually tell my clients that 6 months is the minimum. I have also had cases that have taken years to complete, but those are mostly contested matters with the heirs fighting over the assets.

If the will doesn’t provide for an Independent Executor, or if there is no will, and the heirs cannot agree on having an Independent Administrator Appointed, then a Dependent Administration will be ordered. That process usually takes 15 months at a minimum for the heirs to receive their portion of the Estate.

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