There are several different types of probate in Texas, but they are not all created equal. They range from formal proceedings in front of a judge to filing an affidavit. The kind of probate that’s best for you depends on the estate and the circumstances surrounding it.
What Is Probate?
Before diving into the types of probate administration in Texas, let’s define probate. Probate involves proving the validity of a will, if the person who died (the decedent) left one. However, probate also encompasses administering the decedent’s estate.
This legal process involves appointing an executor, identifying and valuing assets, paying creditors and taxes, and distributing assets to heirs and beneficiaries. Regardless of the type of probate, there’s always paperwork to file, deadlines to meet, and fees to pay. Our probate attorneys are here to help you through the probate process.
What Are the Different Types of Probate?
There are five types of probate in Texas.
Small Estate Affidavit
A Small Estate Affidavit (SEA) is a quick and less expensive way to administer an estate. You can transfer the decedent’s assets without going through a formal probate proceeding, as long as the estate qualifies. The requirements under the Texas Estates Code for using a Small Estate Affidavit include the following:
- The decedent doesn’t have a will;
- No one has requested or appointed a personal representative for the estate;
- The estate’s value is $75,000 or less;
- The estate assets exceed its debts; and
- The decedent’s heirs are known and willing to sign the affidavit.
There are some limitations to using a Small Estate Affidavit. For example, you can’t transfer title to real estate (other than the decedent’s homestead) with this type of probate.
Muniment of Title
Another probate shortcut is a Muniment of Title. The process avoids appointing an executor and filing an inventory of assets. This alternative is permissible if the decedent left a will, there are no outstanding or unsecured debts (except for a mortgage), and only vehicles or real estate need to be transferred.
Probate of an Original Will
If the decedent left a will, you might have to take the traditional probate route. You must admit the will to probate within four years of the decedent’s death—otherwise, the court considers it invalid.
From there, you need to notify heirs and creditors, prepare an inventory of assets, pay estate debts and taxes, and distribute any remaining property. Probate administration can be either independent or dependent, both of which can last for months or years, depending on the complexity of the estate.
Of all the different types of probate in Texas, dependent administration is the most complex. The probate court heavily supervises this form of probate.
The estate executor needs the court’s approval to take action and must get a bond based on the estate’s size. Creditors also have to follow strict claim filing procedures. Dependent administration is typically the best option if there’s conflict among heirs or beneficiaries.
The most common type of probate administration is independent administration. This process doesn’t involve as much court oversight or have the strict requirements that dependent administration does. This type of probate can be requested in the decedent’s will, or all heirs and beneficiaries may agree to it.
Is Probate Always Necessary?
No. Probate is only required if the decedent dies, leaving “probate assets” in their estate. Probate assets are assets titled solely in the name of the decedent. A probate court must determine who has the legal right to such property. The probate judge determines this by either looking at the decedent’s Last Will and Testament or distributing the property according to Texas’s laws of intestate succession.
On the other hand, if the estate has only “non-probate assets” (or no assets at all), you can avoid probate entirely. Non-probate assets are types of property with either a joint owner or a beneficiary designation.
Examples of non-probate assets include life insurance policies, “payable-on-death” (POD) accounts, and property titled as joint tenants with rights of survivorship. These assets automatically transfer to either the co-owner or named beneficiary once the decedent passes away, so probate is unnecessary.
Do you qualify for probate?
Fill out our quick questionnaire to determine if you need probate, what type of probate you may need, and estimated fees.
Contact the Probate Attorneys at Robbins Estate Law
Our probate lawyers can assist with all types of probate cases. From filing paperwork to communicating with probate clerks to paying court fees, we’ll prepare you for what’s ahead. Each attorney at our firm graduated in the top of their class from one of the best schools at the nation and has worked to gain the legal experience you need and want.
To speak with an attorney about the Texas types of probate, call one of our offices or go online to request a consultation.