There are three main types of probate procedures in Texas, including the Standard Probate, a Muniment of Title, and an Affidavit of Heirship. Keep in mind that the term “probate” is usually associated with a person who dies with a Will in Texas, while an administration is usually associated with a person who dies without a Will in Texas. The different procedures for probate and administration vary and depend on a decedent’s circumstances and we look at each situation on a case-by-case basis.
1. Standard Probate: A standard or normal probate where an attorney will file the Will with the county clerk of the last place of residence of the decedent or where the principal assets of the decedent are located, have one court appearance with the judge, publish a notice of an individual’s appointment as Independent Executor, and file an Inventory, Appraisement, and List of Claims which would list the probate assets of the decedent’s estate.
2. Muniment of Title: To probate a Will as a Muniment of Title only means that an attorney will file the Will with the county clerk of the last place of residence of the decedent or where the principal assets of the decedent are located and have one court appearance with the Judge. This method of probate is only advisable if there is no need for an individual to be appointed by the Court as the Independent Executor of the decedent’s estate. This method is not available to an individual if there are two or more debts (other than liens on real estate) owed by the estate or if there is a necessity for an administration of the estate. This type of probate does not require an Independent Executor to publish a notice of his or her appointment as Independent Executor or file an Inventory, Appraisement, and List of Claims.
3. Affidavit of Heirship: An Affidavit of Heirship should be used only if there is not a necessity for an individual to be appointed by the Court as the Independent Executor of an estate, there are not two or more debts (other than liens on real estate) owed by the estate, there are no stocks or bonds owned by the estate, and there is no necessity for an administration on the estate. An Affidavit of Heirship and Election Not To Probate Will is where all persons named in the Will and two disinterested persons would sign a document which states the marital history of the decedent and affirms that there is no necessity for the probate of the Will. This method passes title to the heirs of an estate as if the decedent died without a Will and it is critical that the decedent not have any separate property or have had any children, natural or adopted, from a prior marriage for this method to work to an individual’s benefit.