Consultation with an attorney will determine which form of probate can be utilized in your particular situation. Initial consultation with Robert Markowitz is free. Various fees and costs will be discussed and no fee is payable until there is a mutual agreement on going forward.



 

Independent Administration

This is the most common form of probate and is largely a process that is mostly free of judicial intervention and avoids higher costs that be associated with probate. This occurs when the Last Will and Testament of a person expressly provides for appointment of an “independent” executor or personal representative and states that “no other action is to be had in the county court in relation to the settlement of the estate than the probating and recording of the Will and the return of an inventory, appraisement and list of claims of the estate”. Even without such language, all of the heirs of an estate can agree to an Independent Administration. With this form of probate, a personal representative (executor or administrator) is appointed by the court (usually the person so named in the Will), and becomes the person who is legally empowered to wind up the affairs of the Estate. Review Duties of an Executor

Dependent Administration

This is, perhaps, the most costly of probate administration. This form of probate occurs if there is no Will, or if the Last Will & Testament does not provide for independent administration, or if the heirs do not agree to an Independent administration. This form of probate requires extensive (and expensive) court oversight.

Coupled with an Application for Dependent Administration, there is a necessity to file an Application to Determine Heirship. This procedure results in a court hearing and eventual court Order that identifies the persons that are the lawful heirs of the Estate and entitled to distribution of the decedent’s property. Such persons, and their respective percentage of ownership are determined by law, often referred to the “rights of descent and distribution of an intestate person”.

Probate of a Will as a Muniment of Title

This form of probate is a lower cost form of probate and can be used when the deceased person leaves a Will, (1) if there are no unpaid debts except those which have a secured interest in real property, (2) if the decedent did not receive Medicaid after March 1, 2005, and (3) if there is no need for administration. Under these circumstances, the Will may be admitted to probate as a Muniment of Title which passes title to real property to the heir or heirs named in the Will. A personal representative of the Estate is not appointed by the court under a Muniment of Title.

Small Estate Affidavit

This form of probate is the least cost of probate procedures and can be used (1) when there is no Will, (2) the decedent’s non-exempt assets are greater in value than the known liabilities, and (3) the gross value of all of the decedent’s property, not including exempt property and a homestead, does not exceed $75,000.00. This probate procedure utilizes the affidavits of witnesses who are familiar with the family history and can identify the heirs of the estate. This involves the filing of required documents with the court, and the court’s approval of treatment under the Texas Estates Code, and a personal representative of the estate is not ordered. This process simply identifies the heirs of an estate and allows third parties to rely on such information.