Types of Probate In Texas

In Texas, there are two kinds of probate procedures: i) Dependent Administration of Estates, and ii) Independent Administration of Estates.  Given dependent administration is less common, and entails greater court supervision of the probate process, this blog will focus primarily on Independent Administration of Estates.  It is highly recommended that if you are facing a dependent administration that you will need to hire an experienced lawyer to assist you.  Our Dallas probate lawyers can assist you in probating your loved one's estate.

Independent Administration of Estates

A testator customarily designates in a will certain named executors to pursue an independent administration of their estate upon death.  These name executors, or executrix if female, can friends, family, colleagues or professionals.  Named executors are often named in pairs with one succeeding the other in the event one executor cannot perform his or her duties.  Designating an executor for independent administration is quicker, simpler, and less expensive than the alternative court dependent administration. In the unlikely event all named executors cannot or will not perform their duty under the will, all beneficiaries can join together and ask the court for authority to act as an independent executor if all beneficiaries agree.

Granting an executor the right to proceed through independent administration means that the executor: i) does not have to post a bond; and ii) does not have to ask court permission before taking many steps to settle the estate, such as paying debts, setting aside a family allowance, selling estate property, and distributing assets to the people entitled to inherit them.  Bonds can get expensive, and bonds are simply insurance policies designed to protect the estate against losses from the dishonest acts or mistakes of an executor.

Fee For Performing As Executor Of An Independent Administration of Estates

An appointed executor is entitled to remuneration for his work, and that is typically five percent of all money the estate receives and all money it pays out. The percent is called a "commission" and only applied to transactions for managing the estate (e.g. paying bills, selling items, holding auctions, etc.) Cash or other money equivalents that existed at the time the testator died is not subject to commission. 

Creditor and Public Notices Required 

An independent executor is required to publish notices to potential creditors.  This notice puts potential creditors on alert that their debt interest in the estate is now being handled through probate.  Importantly, in addition to collecting and safeguarding all estate assets, an executor must file a sworn inventory of assets with the court.

Small Estate Affidavits

In Texas, the law allows small estates valued at $75,000 or less to proceed without a probate proceeding using affidavits to document property and other asset distributions to heirs. Tex. Estates Code Ann. § 205.001.  Muniment of Tile can also be used as an inexpensive way to transfer estate assets where there is a will. Tex. Estates Code Ann. § 257.001.

When Is Probate Not Necessary?

Certain assets do not require probate and, in fact, can transfer outside of a will.  These properties require no administration on the part of an executor: 

• Life insurance proceeds;

• Survivor’s benefits from an annuity;

• Payable-on-death (POD) bank accounts;

• Community property with right of survivorship; and

• Property held as joint tenancy with right of survivorship