Before You File an Application to Probate a Will in Texas

Carefully review the Will and any related documents before you attempt to file any type of application for probate of the Will. What you find can substantially impact the type of probate proceeding necessary in your specific circumstances, the type of notice you must give and to whom, as well as the type of evidence you will need to offer at any hearing on your application.

Some key things you should check:

• Was the Will properly executed by the deceased and at least two witnesses?
• Is there a self-proving affidavit attached to the Will, signed by the deceased and at least two witnesses in front of a notary? 
• Does the language of the self-proving affidavit substantially comply with the statutory form set out in Section 59 of the Texas Probate Code? 
• Have you located every Codicil that amended or altered the Will (in whole or in part)? 
• Was each Codicil properly executed by the deceased and at least two witnesses?  
• Is there a self-proving affidavit attached to each Codicil?  
• Is the Will (and each Codicil) an original document or a photocopy? 
• Are you the person named as the first executor in the Will? 
• Does the Will contain a provision stating that the executor may serve “independently” of the court? (see our previous blog post: http://texprobateblog.blogspot.com/2009/06/most-important-words-in-your-will.html) 
• Does the Will contain a provision stating that the executor may serve “without bond?” (see our previous blog post: http://texprobateblog.blogspot.com/2009/06/most-important-words-in-your-will.html) 
• Does the Will contain a “residuary clause” or other language that disposes of all of the decedent’s non-probate property?

If the answer to any of these questions is “No,” there will be a few extra steps to take as part of the probate process in your situation. You should seek advice from a probate lawyer to help you determine your next steps.

By: Cynthia W. Veidt

Probating an Estate Without Administration in Texas: The Muniment of Title Procedure

What if your relative in Texas died with a will, but her assets are not very complicated, her will is clear about who should receive each asset, and you’d rather not spend a lot of money or time going through probate?

In Texas, you may be able to use a special, simplified form of probate. In order to qualify, the following must be true:

The deceased had a valid written will;

That will had not been revoked;

The only debts owed by the deceased are secured by liens on real estate; and

Four years have not passed since the date of death.

A few other conditions may apply, but if the foregoing is true, you may be able to seek an order from the Texas probate court (following a brief hearing) admitting the will to probate as a “muniment of title.” No one will be appointed to act as the executor or other representative of the deceased’s estate. Instead, the will itself becomes an official public record of Texas that acts as the required instrument to transfer title and ownership from the deceased to the persons named in her will.

You should be cautious, however, when attempting to use this simplified Texas procedure. Many stock brokerage firms, banks, life insurance companies and title companies in other states are often unfamiliar with the Texas muniment of title procedure, and they sometimes refuse to recognize this process as a valid method of transfer.

If your relative had investment/retirement accounts or similar assets that did not have valid beneficiary designations, you should check with the companies holding or managing these assets to determine whether they will accept an order probating the will as a muniment of title before attempting to use this procedure.

By: Austin Attorney Cynthia W. Veidt

How Can I Change My Texas Will Without Creating a Brand New One?

Sometimes, you want to change one little thing in your Texas will without the need to create and sign an entirely new one. For example, one of the persons you identified as your executor has died, and you want to name someone else in his/her place. Or perhaps you’ve had an addition to the family and want to leave a specific item or gift to your new grandchild.

In these situations, a codicil to your Texas will can be created to make the minor change or to add a new provision. The codicil should specifically reference your existing Texas will, preferably by date of execution, and specifically identify the paragraph(s) you are changing or create a new number/section for the information you are adding.  A codicil in Texas should be executed using the same formalities as an original will and can be made self-proving in the same manner as an original will. Make sure that your codicil is placed in the same location as your will, and that your executor is aware of its existence.

However, if you want to make several changes to your will, or something has occurred in your life that substantially alters your previous estate plan (such as a marriage/divorce or birth/adoption of a child), you should execute a new will, under the usual formalities, and specifically revoke the old one. Multiple codicils to a will, or substantial changes to a will via codicil, can become very confusing to your executor or increase the risk that the terms will be inconsistent with each other.

Article by Cynthia W. Veidt, Austin Attorney