Experienced Probate Attorneys in Plano, Texas

What is Probate?

Probate or probate administration is a legal process by which debts are paid out of a decedent’s estate and the remaining assets are distributed as per the decedent’s will.  If the decedent passed away without a will, then the decedent’s assets will be distributed according to state law.

The benefit of probate administration is that it provides an orderly, supervised manner of paying debts and distributing assets. However, probate has its downsides:

• Time – Probate can take a lot of time; anywhere from nine months to two years or more. Also, during the probate process, estate assets are usually frozen so that they can be inventoried and valued.
• Expense – Probate can be expensive. Legal fees, executor fees, and other costs must be paid before the assets can be fully distributed to the heirs. These expenses may compound if the deceased owned property in multiple states, thus requiring multiple probate proceedings.
• Lack of Privacy – Because probate is a public proceeding, any interested party can find out the value of the estate, what was owed, and who received distributions. This exposed process invites disgruntled relatives and heirs to contest the will and exposes the heirs to dubious solicitations.

An experienced probate attorney can be an invaluable guide to the probate process, helping to minimize and solve any problems that may arise. Common probate proceedings include Small Estate Affidavits, heirship property problems, Muniment of Title, and Determination of Heirship Actions.

Probate Alternative for Small Estates: the Small Estate Affidavit

When a person dies intestate, Texas law provides a quick, streamlined process for estate administration provided that the estate is small and certain other criteria are met. This abbreviated process is initiated by filing a Small Estate Affidavit.

The eligibility criteria for filing this affidavit are enumerated in Chapter 205 of the Texas Estates Code.   Generally speaking, a Small Estate Affidavit may be used if:

• More than 30 days have passe since the decedent’s death
• The value of the estate assets, excluding the decedents homestead and other exempt property, does not exceed $75,000
• No petition for the appointment of a personal representative is pending or has been granted, nor is any probate petition pending

There are other criteria pertaining to eligibility and the affidavit itself that must also be met.

Common Problems: Heirship Property, the Affidavit of Heirship, and Determination of Heirship

If a person owns property jointly with others and dies intestate, but the  title to his or her property does contain explicitly contain “joint tenancy with survivorship” language, then it becomes difficult to determine the exact percentages of ownership that remain in the property.  Because the rights to the property are in doubt, such property is basically unsellable. In fact, title companies will not even insure the title until the ownership interests in the property are clearly resolved. Such property is called “heirship property.”  There are two ways to resolve heirship property problems:

1. A probate proceeding in county court resulting, ultimately, in a judgment determining heirship, or
2. Through an Affidavit of Heirship. 

Because it is inexpensive and quick, the affidavit of heirship has become a commonly used means to resolve problems with heirship property.  However, not all title companies are comfortable relying on such affidavits, and issues with the sale and transfer of such property may still arise. 

When dealing with heirship property, it is important to consult with a probate lawyer who can assist you in resolving these often complicated issues.

Muniment of Title

Muniment of title is the fastest and simplest probate proceeding.  When a decedent leaves a will directing the disposition of real property, the heirs may initiate a muniment of title to probate only the real estate as to transfer it quickly and cleanly.

As will all special probate proceedings, there are many criteria that must be met before a Muniment of Title maybe initiated.  Generally, Muniment of Title is unavailable if:

• An inventory of assets is required
• An executor has not yet been appointed to the estate
• Estate assets have been sold to pay off debts

Determination of Heirship

Although it sounds similar to an Affidavit of Heirship, a Determination of Heirship is a very different matter. This is an action filed in the court when a decedent dies without a will. This action may be initiated by the decedent’s relatives or even a friend seeking to determine the decedent’s heirs.

Upon the initiation of such an action, the court will appoint a probate attorney ad litem to represent the interests of the yet unknown heirs. Once this probate lawyer has located the heirs and determined their interests, then probate may continue.