Types of Probate
Texas law provides for three (3) different methods of probating an estate. Each of these methods differs in the level of complexity and time involved in the process, and they each have different requirements that must be met in order to achieve a successful probate in San Antonio, Dallas, Houston, Galveston or anywhere in Texas. The following is brief description of each of the types of probate. Click on the links of each to obtain more in-depth information about each of these methods.
The default rule in Texas requires that a probate administration of someone’s estate must be a dependent administration. Basically, this concept means that the executor or administrator of the estate is dependent upon the Court’s supervision and authority to conduct any action in the probate process. For instance, the dependent administrator is required to seek the Court’s approval prior to selling a house, selling a car, cashing in stocks, paying debts of the estate, etc.
Likewise, the dependent administrator is required to file accountings with the Court during each year of the probate case. In these accountings, the administrator must inform the Court about all of the income and expenses of the Estate during that year. Additionally, the administrator must provide copies of all receipts for expenses and verifications from various financial institutions as to the balances of bank accounts owned by the Estate as of the end of the year’s time.
The dependent administration provides a higher level of scrutiny that helps the heirs and beneficiaries of the estate that the administrator has properly completed his duties. Likewise, the dependent administration provides the administrator with a greater level of protection because all of his actions have to be approved by the Court at the time that they are undertaken. Conversely, however, the dependent administration requires much greater time and expense to the estate than other methods of probate.
If an estate would otherwise require a dependent administration, all of the heirs or beneficiaries of the estate can agree to have the Court waive the requirement of the dependent administration and instead appoint an Independent administration (see below), which will be less costly and time-consuming. However, the agreement requires 100% agreement of all of the heirs or beneficiaries of the Estate.
Probably the most significant benefit to the probate process in Texas is the concept of “independent administration.” Under Texas law, the executor or administrator can be appointed to serve independently of the Court’s scrutiny. In such cases, the executor has only a couple of requirements that must be met in order to satisfy the Court, and once those requirements have been met, the executor is free to fulfill his duties without any further Court oversight.
Unlike the dependent administration, the Independent Administrator is not required to seek the Court’s approval prior to selling assets or paying debts. Likewise, the Independent Administrator is not required to file the detailed accountings that are required of dependent administrators. As a result, the time and expense involved in an independent administration is significantly reduced from what is required of the dependent administrator.
The third type of probate is known as a Muniment of Title, and it is somewhat unique to Texas. This is the only mechanism by which a Will can be admitted to probate more than 4 years after the death of the Decedent. Likewise, it is the only method of probate that does not require the appointment of an executor or administrator.
- 700 Louisiana Street
- 48th Floor
- Houston, TX 77002
- T: 713.260.3926
- F: 713.260.3903
- 901 Main St.
- 63rd Floor
- Dallas, TX 75202
- T: 214.389.0887
- F: 214.389.0888
[03/14] — Ford + Bergner's Houston Office is Moving Effective April 1, 2014
[03/14] — F+B Senior Associate T. Aaron Dobbs was named a Rising Star in Estate & Trust Litigation by Texas Monthly Magazine.
[11/13] — In 2013 alone, F+B has worked on large litigation matters in Midland, Austin, Denton, McKinney, Beaumont, Dallas, Houston, Hempstead, Angleton, Hearne, and Fairfield.