What Is Probate?

• Probate is simply the legal term used to describe the process by which courts oversee the administration of an estate when someone dies. Each state determines its own probate laws, rules and procedures. As a result, states differ with regard to when an estate must pass through the probate court and what types of probate procedures may be used. During the probate process, the decedent's estate is valued and inventoried and the debts of the decedent are paid. Eventually, the remaining assets of the estate are passed down to the heirs or beneficiaries according to the terms of the will, or pursuant to the intestate succession laws of the state if no will was executed.
  
  

General Rules for a Will

• Texas requires anyone who has custody of a will upon the death of a decedent to immediately deliver the will to the appropriate probate court for probate upon learning of the death. Failure to produce the will can result in serious penalties, including imprisonment. Once the will has been delivered to the court, an official petition to probate can be filed as well as an application to be appointed executor or administrator of the will. The executor or administrator is responsible for the practical aspects of administering the estate from petitioning to probate through to the final accounting and distribution of assets.
  
  

Muniment of Title

• Texas also allows for an alternative method, other than formal probate, for probating a will. Muniment of title allows a beneficiary of the estate to apply to transfer the title to real property without the need for a lengthy and formal probate. Muniment of title is only available when there are no debts of the decedent other than a lien on the real property that is to be transferred. If the court approves the muniment of title request, the probate process will be significantly shorter than formal probate.
  
  

Legal Representation

• The probate process can be complicated and lengthy if formal probate is required. If you are in possession of a will left by a decedent, and you believe that formal probate will be required, you should consider consulting with an attorney. Most executors or administrators retain the services of an attorney to ensure that the process proceeds according to all state and federal laws. If muniment of title is an option, you may consider applying without an attorney as that process is considerably less complicated; however, the final decision regarding counsel is yours to make.