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That will had not been revoked;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

Who Cannot Become the Personal Representative of an Estate?

Texas law specifically excludes the following persons from qualifying to serve as the personal representative (executor or administrator) of a deceased’s probate estate:

a) An incapacitated person (someone who is mentally or physically unable to handle his or her own affairs);

b) A convicted felon, unless such person has been pardoned, or his or her civil rights have been restored by a court;

c) A non-resident of the State of Texas, unless he or she has appointed a Texas resident as an “agent” to accept service of process in all actions or proceedings with respect to the estate;

d) A corporation not authorized to act as a fiduciary in the State of Texas; or

e) Any person the Court finds to be “unsuitable”. 

In addition, if the will designates the deceased’s former spouse to serve as personal representative of the estate and the marriage was subsequently dissolved by divorce, annulment or judicial declaration that the marriage was void, that former spouse cannot be appointed as personal representative of the estate except under very unusual circumstances. 

Article by Cynthia W. Veidt, Attorney

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

Helpful Resource Guide on Texas Law!!

The Texas Young Lawyer’s Association (TYLA) is often a wealth of information for persons trying to obtain basic information and guidance about Texas law. Now, TYLA provides another helpful resource guide for Texas who are interested in estate planning and the probate process.  The Texas Probate Passport can be found at http://www.tyla.org/tyla/index.cfm/projects/probate-passport/.

Article by Cynthia W. Veidt, Austin Attorney

When Does an Account Have a “Right of Survivorship”?

Texas law has not favored the creation of joint ownership with right of survivorship (“ROS”) for a variety of historical reasons. Executors of a deceased’s estate are often left to wonder – is this joint account non-testamentary (in other words, not an asset of the probate estate subject to the executor’s control) because it meets the requirements for a right of survivorship under Texas law?  Financial institutions can be reluctant to pay on these joint accounts prior to some form of probate, which prevents the co-owner(s) from having access to funds needed to pay their bills.

So much for careful estate planning to minimize probate assets!

Chapter XI of the Texas Probate Code deals with non-testamentary transfers, with particular attention to multi-party accounts and survivorship rights. One of the first things you should try to obtain is a copy of the account agreement. Look to see if it uses language such as “on the death of one party, all sums belong to the surviving party as his or her separate property and estate.”  Tex. Prob. Code § 439. Reliance on the name of the account, alone, is usually insufficient to create survivorship rights.

In addition, you may want to check the account agreement against the proposed “Uniform Single-Party or Multiple-Party Account Form” described in section 439A of the Texas Probate Code. Banks and other financial institutions which utilize this form, or something substantially similar to it, are protected from most claims that could be brought by a deceased’s estate, personal representative, beneficiaries or heirs if they rely on the “survivorship” provisions to pay remaining sums to the joint owner(s).

Article by Cynthia W. Veidt, Attorney

Protecting the Artist/Filmmaker/Musician’s Rights

You’ve worked a long time to create something special – whether it’s a song, a poem, a novel, a screenplay, a film, a photograph, a painting, a couture design for your future show at Bryant Park, or some other artistic work. A whole bundle of legal rights protects your time and investment, ranging from copyright and patents to distribution and recording rights. Don’t forget that you need to protect those rights during your lifetime in the event of future incapacity or after death. First, be aware of which rights you have retained, and which you may have bargained away. For example, ownership or control over the “master” of a particular recording session is often legally separate from the right to use and publicize one’s name, image and likeness. In an age where online videos, t-shirts, hats and other cross-promotions can generate more revenue that royalties from a single song, you need to be aware of these important property rights. And your heirs may be able to register their rights (via Chapter 26 of the Texas Property Code) to control and license your image and life story for up to 50 years. Second, you need to carefully review the language of any contracts – and always get these agreements in writing – so that you can properly negotiate over the entire bundle of intellectual property rights. Consider this: if George Lucas had overlooked the value of “image” merchandising when he negotiated his contract for the original Star Wars movie, he probably would not be the wealthy man that he is today. Finally, when you prepare a will (and yes, you most definitely should have a will) and other health-care planning documents, make sure that you hire an attorney and provide them with a copy of all contracts. Most of the rights in artistic works are considered “intangible property,” and you do not want them to fall into the wrong category for division among your heirs. Careful drafting will help ensure that your loved ones receive the bounty of your hard work once you are gone. Article by Cynthia W. Veidt, Attorney

Trustee Guilty of Unauthorized Practice of Law in Texas?

Trustees who are not attorneys beware! You may be guilty of the unauthorized practice of law in the State of Texas.

Texas Trustees are often given the power to sue or be sued on behalf of the trust; it is a necessary power, since a trust must be able to enforce its rights or defend itself from legal action. But the Amarillo Court of Appeals recently found that a non-attorney trustee had no right to proceed in a pro se capacity (i.e., without an attorney) in legal proceedings. See In Re Guetersloh, 326 S.W.3d 737 (Tex. App.—Amarillo 2010, no pet.).

The court’s reasoning: the trustee was not enforcing his or her individual rights, but was instead acting on behalf of others (the trust’s beneficiaries). Since the trustee was not an attorney, he was necessarily engaging in the unauthorized practice of law.

Similar rules bar a corporation’s representative from suing or defending in the name of the corporation without legal counsel.

Article by Cynthia W. Veidt, Austin Attorney