When someone dies, a probate is filed to dispose of the assets. What type of probate should be filed?
In Texas there are several different types of probate. The one that you want to avoid if possible is a Dependant Administration. There are times when a Dependant Administration can’t be avoided but if it is possible to file some other type of administration it is wise to do so.
A Dependant Administration has to be filed where there is a necessity to administer the estate and:
- the deceased did not leave a will; or
- there is a will but it does not provide for Independent Administration; or
- there is a will and it does provide for an Independent Administration but the Executor named cannot serve for one reason or another.
When a Dependant Administration is filed, the court appoints an Administrator, not an Executor. The reason to avoid a Dependant Administration is that when the Administrator wants to do something, he must:
- file a motion with the court and schedule a hearing after due notice;
- request permission at the hearing to do something and explain why he needs to do it;
- obtain an order from the court authorizing him to do it; and
- file a notice with the court that he has done it.
The procedure is very labor intensive for the Administrator and the lawyer and therefore is very expensive.
An Independent Administration is filed where there is a need to administer the estate and the decedent left a will providing for an Independent Administration and naming an Executor who can serve in that capacity. Texas Independent Administration is very simple:
- the will is filed for probate;
- notices are issued;
- the judge holds a hearing where he admits the will to probate and appoints the person designated by the will to be the Executor.
After that, the only court involvement is for the Executor to file an Inventory, Appraisement and List of Claims which is just a list of the assets in the estate. If every thing is in order, the judge will approve the Inventory without a hearing and the Executor never has to deal with the court again.
The Muniment of Title procedure is used when there is a will but there is no need to administer the estate but something needs to be filed to show who now owns the assets of the estate under the will.
These are the three most used procedures in Texas. There are other procedures such as an agreed independant administration, a small estate affidavit or affidavits of heirship that are less commonly used. I will cover these in a later post.
