Texas Probate options when…
the deceased died with a will
Probate of a Will in Texas is almost always less hassle and less expense than our clients expect. Yes, Texas law does generally require a probate attorney in order to probate a will. However, even if this is your first time hiring a lawyer, we think you’ll be pleasantly surprised with the Texas probate of a will.
OPTION 1: PROBATE OF A WILL IN TEXAS ("TRADITIONAL PROBATE")
Nine times out of ten, when a deceased person dies with a will in Texas, traditional probate is the best option. With traditional probate, you’re accomplishing two things at the same time.
First, you’re “probating” the will. This means that a probate judge will sign an order essentially validing the Last Will & Testament as legally valid under Texas Law.
Second, you’re having an executor appointed by the judge. Even if the will nominates an executor, the executor is not legally appointed until the probate judge signs an order appointing the executor.
Since the probate is required in order to have an executor appointed by the judge, most probate clients need traditional probate. You’ll know if you need traditional probate if someone at the bank tells you, “You need to go get letters testamentary.” “Letters Testamentary” is actually a document issued by the probate court clerks after the executor has been officially appointed by the judge. In essence, the bank needs Letters Testamentary to have true assurance that they’re dealing with the court-appointed executor of the estate.
OPTION 2: PROBATE OF A WILL AS "MUNIMENT OF TITLE"
Texas probate as a muniment of title IS probate. Meaning, if your lawyer requests that the probate judge probate the will as a “muniment of title only”, the Will is every bit as much probated as a Will that was probated through traditional probate. In other words, if you probate as a muniment of title, the judge will sign an order declaring the Will to be valid under Texas Law.
The big difference with probate as a muniment of title, however, is that no executor is appointed. Even though the Will may nominate an executor, if there is no work for an executor to perform, then Texas probate as a muniment of title is perfect.
Our probate lawyers sometimes recommend probating as a muniment of title when the deceased person’s estate contains only real estate and when there are no debts owing by the deceased person.
OPTION 3: AVOID PROBATE ALTOGETHER
If a person dies in Texas with a Last Will and Testament and the deceased person had no assets in his/her name, then there may be no reason to probate at all.
This comes about when a person dies with only bank accounts having beneficiary designations. In instance, you’ll hear people say, “There’s no reason to probate because there are no assets that need to go through probate.” If all of the assets can be distributed without probating a will, then you may be able to avoid probate.
Some Texas avoid probate by having a trust. A trust can avoid probate if the deceased person had transferred all his assets into his trust before death. In this way, he didn’t technically have any assets in his name at the time of death. As estate planners, our attorneys often recommend trusts for probate avoidance to our estate planning clients.
Sometimes, even when a Texan dies with a trust, probate is still necessary. This is because there is some asset outside the trust at the time of death. In this case, the deceased person likely has a “pourover will.” This will “pours over” any assets not in the trust’s name at the time of death, into the trust.
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