Probate Definitions, Part Two

In it’s simplest of terms, probate is the process of passing title from the decedent to others, whether it be cash to creditors or any variety of assets to beneficiaries under the will.  In Texas, we have various probate procedures available, depending on a variety of factors, including the type and amount of assets, whether there are debts, and even the wording of the will itself.

Probate of a will as a Muniment of Title is a probate procedure in which no administration is necessary; only a judicial acknowledgement of the validity of the will in order to document a legal transfer of title.  A common example of this is in the instance of a married couple that own a home together and each has a will in which all goes to the surviving spouse.  A muniment of title order will be entered into the records to show that the title to the property has now vested solely in the surviving spouse.  There are restrictions on this type of proceeding. For example, the estate must not have any debts other than those secured by real property.

Probate of Will and Appointment of Letters Testamentary. This is a probate procedure in which an administration is necessary and an executor is named.  Examples of circumstances calling for an administration include estate debts or real property that need liquidating.  The executor oversees the administration throughout, until all debts are paid and property transferred to the intended recipients.  Related, but distinct, would be an appointment of an administrator as opposed to an executor.  An administrator is generally someone whose responsibilities are the same as an executor but who was not actually appointed by the will.  This may be because the named executor and any successor’s cannot or will not serve for some reason or it may be because the will failed to name any executor (somewhat common with holographic, or handwritten wills).

An appointment with a probate attorney is paramount when a loved one passes to determine the appropriate probate procedure, if any, to commence.

This article is written by an attorney at Wyatt & Mirabella, PC. Always consult an attorney before making any legal decisions. To make an appointment today for a free consultation, please click here to contact us.