Applications to Probate and Small Estates Affidavit. Linda Haney Ector County Clerk

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1 Applications to Probate and Small Estates Affidavit Linda Haney Ector County Clerk

2 What is a Will? This is the legal document in which a decedent has outlined how he or she would like assets distributed among their loved ones.

3 Effectiveness of Will Estates Code Will Not Effective Until Probated...a will is not effective to prove title to, or the right to possession of, any property disposed of by the will until the will is admitted to probate.

4 Effectiveness of Will Estates Code PROBATE BEFORE DEATH VOID. The probate of a will of a living person is void.

5 What is Probate? Probate is the process by which a court legally recognizes a person s death, proves that the will of a person who has died is valid and authorizes the administration of his or her estate.

6 What is the Purpose of Probate? The purpose of Probate is to transfer the assets out of a deceased person s name and into the name(s) of the living.

7 Who Can Make Application for Probate of Will? Estates Code ELIGIBLE APPLICANTS FOR PROBATE OF WILL (a) An executor named in a will or an interested person may file an application with the court for an order admitting a will to probate, whether the will is: (1) written or unwritten; (2) in the applicant's possession or not; (3) lost; (4) destroyed; or (5) outside of this state. (b) An application for the probate of a will may be combined with an application for the appointment of an executor or administrator. A person interested in either the probate or the appointment may apply for both.

8 What are the Different Ways to Probate a Will in Texas Independent Administration and Dependent Administration Muniment of Title Small Estates Affidavit

9 Independent Administration This process is the usual route when a decedent had a valid will, which named an Executor for the Estate. With an Independent Administration, the Executor has more freedom to carry out his or her duties without strict oversight by a probate court. With this type of probate, another key distinction is that the Executor is not required to post a bond, or insurance policy, for the estate.

10 Dependent Administration When someone has died without a will, Texas probate law typically requires that the estate fall under a stricter oversight by the court known as Dependent Administration. The administrator is required to post a surety bond, seek court approval for every step in the process of distributing an estate, as well as filing detailed reports every year with a Texas probate court regarding the estate.

11 Muniment of Title Muniment of Title is a process by which you can probate a will in Texas. This process can be utilized when a valid will exists, the estate has no debts except secured real estate, and Medicaid has no claims against the estate to recover benefits the decedent may have received.

12 Small Estates Affidavit When a decedent had no will and the value of his or her estate is $50,000 or less, the beneficiaries of the estate can file a Small Estate Affidavit (sworn statement) to collect the property without going through the probate process.

13 County Court Jurisdiction Estates Code Sec ORIGINAL JURISDICTION FOR PROBATE PROCEEDINGS. (a) In a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, the county court has original jurisdiction of probate proceedings.

14 Concurrent Jurisdiction Estates Code Sec (b) In a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, the county court at law exercising original probate jurisdiction and the county court have concurrent original jurisdiction of probate proceedings, unless otherwise provided by law. The judge of a county court may hear probate proceedings while sitting for the judge of any other county court.

15 Statutory Probate Court Jurisdiction Estates Code Sec (c) In a county in which there is a statutory probate court, the statutory probate court has original jurisdiction of probate proceedings.

16 Court of Jurisdiction for Contested Probate Matters Estates Code Sec JURISDICTION OF CONTESTED PROBATE PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT OR STATUTORY COUNTY COURT. (a) In a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, when a matter in a probate proceeding is contested, the judge of the county court may, on the judge's own motion, or shall, on the motion of any party to the proceeding, according to the motion: (1) request the assignment of a statutory probate court judge to hear the contested matter, as provided by Section , Government Code; or (2) transfer the contested matter to the district court, which may then hear the contested matter as if originally filed in the district court.

17 Venue Estates Code Sec Venue for a probate proceeding to admit a will to probate or for the granting of letters testamentary or of administration is: (1) in the county in which the decedent resided, if the decedent had a domicile or fixed place of residence in this state; or

18 Venue Continued (2) with respect to a decedent who did not have a domicile or fixed place of residence in this state: (A) if the decedent died in this state, in the county in which: (i) the decedent's principal estate was located at the time of the decedent's death; or (ii) the decedent died; or

19 Venue Continued (B) if the decedent died outside of this state: (i) in any county in this state in which the decedent's nearest of kin reside; or (ii) if there is no next of kin of the decedent in this state, in the county in which the decedent's principal estate was located at the time of the decedent's death.

20 Period for Admitting Will to Probate Estates Code Period for Admitting Will to Probate (a) A will may not be admitted to probate after the fourth anniversary of the testator's death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator's death. (b) Letters testamentary may not be issued if a will is admitted to probate after the fourth anniversary of the testator's death.

21 General Information One Decedent / One Probate Cause Number As a matter of practice before a cause number is assigned, one should always search the index to ascertain that there are no existing case on the decedent

22 Application Requirements Estates Code Section Eligible Applicants for Probate of Will Estates Code Section Contents of Application for Probate of Will Estates Code Section Filing of Will with Application for Probate Generally Required

23 Common Procedures on Filing New Probate Cases 1. Receive and File Mark Original Application, Will and & Civil Cover Sheet 2. Assign Cause Number 3. Assign Court 3. File Mark 4. Collect Filing Fee 5. Enter Information in Case Management System 6. Issue Citation 7. Issue Abstract 8. Prepare Judge s Docket Sheet 9. Index 10. Scan Documents

24 Filing Procedures Estates Code FILING PROCEDURES (a) An application for a probate proceeding, complaint, petition, or other paper permitted or required by law to be filed with a court in a probate matter must be filed with the county clerk of the appropriate county. (b) Each paper filed in an estate must be given the docket number assigned to the estate. (c) On receipt of a paper described by Subsection (a), the county clerk shall: (1) file the paper; and (2) endorse on the paper: (A) the date the paper is filed; (B) the docket number; and (C) the clerk's official signature.

25 Court Assignment and File Number The cause number should be a unique, sequential number. Most often the cause number is associated with the court assignment. In Ector County the Court Assignment is based on the Cause Number of the Case with all odd numbered cases assigned to County Court at Law, all even numbered cases assigned to the County Court at Law #2 and all cases ending with a 0 or 5 being assigned to the County Court.

26 Filing Fees Assess, collect and receipt the proper filing fee Fees will vary from county to county depending on Sheriff s Fees, Law Library Fee, Archive Fee, etc.

27 Case Management System Enter names of parties with any identifying information Enter Attorney s information Enter Case Events

28 Citations Issue Citation for Posting from Case Management System The date of filing and issuance of citation will determine when the case is eligible/ripe for hearing

29 Issuance of Notice and Content of Citation / Notice Estates Code Issuance of Notice or Process in General Estates Code Contents of Citation or Notice

30 Service by Posting Estates Code Service by Posting (a) The county clerk shall deliver the original and a copy of a citation or notice required to be posted to the sheriff or a constable of the county in which the proceeding is pending. The sheriff or constable shall post the copy at the door of the county courthouse or the location in or near the courthouse where public notices are customarily posted. (b) Citation or notice under this section must be posted for at least 10 days before the return day of the service, excluding the date of posting, except as provided by Section (b). The date of service of citation or notice by posting is the date of posting.

31 Probate Case Files Estates Code Case Files (a) The county clerk shall maintain a case file for the estate of each decedent for which a probate proceeding has been filed. (b) Each case file must contain each order, judgment, and proceeding of the court and any other probate filing with the court, including each:

32 Probate Case Files Continued 1) application for the probate of a will; (2) application for the granting of administration; (3) citation and notice, whether published or posted, including the return on the citation or notice; (4) will and the testimony on which the will is admitted to probate; (5) bond and official oath; (6) inventory, appraisement, and list of claims; (6 a) affidavit in lieu of the inventory, appraisement, and list of claims;

33 Judge s Probate Docket Estates Code Probate Docket (a) The county clerk shall maintain a record book titled "Judge's Probate Docket" and shall record in the book: (1) the name of each person with respect to whom, or with respect to whose estate, proceedings are commenced or sought to be commenced; (2) the name of each executor, administrator, or applicant for letters testamentary or of administration; (3) the date each original application for probate proceedings is filed; (4) a notation of each order, judgment, decree, and proceeding that occurs in each estate, including the date it occurs; and (5) the docket number of each estate as assigned under Subsection (b). (b) The county clerk shall assign a docket number to each estate in the order proceedings are commenced.

34 Probate Index Estates Code Index (a) The county clerk shall properly index the records required under this chapter. (b) The county clerk shall keep the index open for public inspection, but may not release the index from the clerk's custody.

35 Probate Fee Book Estates Code Probate Fee Book (a) The county clerk shall maintain a record book titled "Probate Fee Book" and shall record in the book each item of cost that accrues to the officers of the court and any witness fees. (b) Each record entry must include: (1) the party to whom the cost or fee is due; (2) the date the cost or fee accrued; (3) the estate or party liable for the cost or fee; and (4) the date the cost or fee is paid.

36 Notification to Voter Registrar Election Code (b) (b) Each month the clerk of each court having probate jurisdiction shall prepare an abstract of each application for probate of a will, administration of a decedent's estate, or determination of heirship, and each affidavit under Section 137, Texas Probate Code, that is filed in the month with a court served by the clerk. The clerk shall file each abstract with the voter registrar and the secretary of state not later than the 10th day of the month following the month in which the abstract is prepared.

37 Permanent Minutes The application for Probate and other court documents should be transcribed or copied, numbered as to volume and page(s) and put into the permanent minutes of the court. Remember if you have a Case Management System the documents can be scanned and maintained in an electronic format.

38 Alternate Recordkeeping Sec Alternate Recordkeeping Instead of maintaining the record books described by Sections , , and , the county clerk may maintain the information described by those sections relating to a person's or estate's probate proceedings: (1) on a computer file; (2) on microfilm; (3) in the form of a digitized optical image; or (4) in another similar form of data compilation.

39 Probate Case is Filed Now What? The case is set for hearing. The purpose of the hearing is to appoint the executor, and to admit the will to probate.

40 What Happens at the Hearing? The judge reviews the application and the original will to establish the validity. The judge hears testimony with record of the testimony reduced to writing and signed and sworn to by the person giving testimony in open court. The written record (Proof of Death and Other Facts) is filed by the clerk in the case file.

41 What Happens at the Hearing? Continued When the judge is satisfied as to the deceased person s last wishes, the judge will appoint an executor for the estate and issue an order admitting the will to probate. The order officially recognizes the will and allows for distribution of the estate.

42 What Happens Next? The next step will be for the executor to file an oath with the clerk stating that the executor believes that the writing offered for probate is the last will of the decedent and that the executor will perform all duties of executor.

43 Period for Taking Oath Estates Code (1) An oath may be taken and subscribed at any time before: (1) the 21st day after the date of the order granting letters testamentary or of administration, as applicable

44 Then What? The executor or attorney will request the clerk to issue letters testamentary. These letters should contain the clerk s signature and seal, and are a public statement that the executor has control of the estate. Letters Testamentary are used to access bank accounts and dispose of property.

45 Clerk s Responsibility Before Issuing Letters Testamentary The clerk should make certain that the court file contains all of the following documents: Application Will Citation and return Proof of Death and Other Facts Order Admitting will to Probate Oath of Executor

46 Form and Content of Letters Estates Code Form and Content of Letters Letters testamentary or of administration shall be in the form of a certificate of the clerk of the court granting the letters, attested by the court's seal, that states: (1) the executor or administrator, as applicable, has qualified as executor or administrator in the manner required by law; (2) the date of the qualification; and (3) the name of the decedent.

47 PROBATE OF WILL AND ISSUANCE OF LETTERS TESTAMENTARY Letters Testamentary are not recordable instruments and are never recorded in the probate minutes. Likewise, because they are not recordable documents. The clerk may not issue certified copies of letters testamentary at any time. The clerk may however issue a certificate under seal of the court, stating that such letters have been issued AG H 410 EC

48 Inventory and Appraisement Estates Code (a) Except as provided by Subsection (c) or Section or unless a longer period is granted by the court, before the 91st day after the date the personal representative qualifies, the representative shall prepare and file with the court clerk a single written instrument that contains a verified, full, and detailed inventory of all estate property that has come into the representative's possession or of which the representative has knowledge.

49 List of Claims Estates Code A complete list of claims due or owing to the estate must be attached to the inventory and appraisement required by Section

50 Affidavit in Lieu of Inventory, Appraisement and List of Claims Estates Code (b) (b) Notwithstanding Sections and , or any contrary provision in a decedent's will that does not specifically prohibit the filing of an affidavit described by this subsection, if there are no unpaid debts, except for secured debts, taxes, and administration expenses, at the time the inventory is due, including any extensions, an independent executor may file with the court clerk, in lieu of the inventory, appraisement, and list of claims, an affidavit stating that all debts, except for secured debts, taxes, and administration expenses, are paid and that all beneficiaries have received a verified, full, and detailed inventory and appraisement. The affidavit in lieu of the inventory, appraisement, and list of claims must be filed within the 90 day period prescribed by Section (a), unless the court grants an extension.

51 Is Probate a Never Ending Process? After an estate has been fully administered, any distributee my file an application for the estate to be closed. A court hearing must be held and the executor must be properly served with notice of the application and hearing. The court may order the executor to file a final report, thus closing the estate.

52 Settling and Closing Administration of Estate Estates Code The administration of an estate shall be settled and closed when: (1) all the debts known to exist against the estate have been paid, or have been paid to the extent permitted by the assets in the personal representative's possession; and (2) no further need for administration exists.

53 Why File Application for Muniment of Title Estates Code Probate of Will as Muniment of Title Authorized A court may admit a will to probate as muniment of title if the court is satisfied that the will should be admitted to probate and the court: (1) is satisfied that the testator's estate does not owe an unpaid debt, other than any debt secured by a lien on real estate; or (2) finds for another reason that there is no necessity for administration of the estate.

54 Clerk s Duties Muniment of Title 1. Receive and File Mark Original Application, Will & Civil Cover Sheet 2. Assign Cause Number 3. Assign Court 3. File Mark 4. Collect Filing Fee 5. Enter Information in Case Management System 6. Issue Citation 7. Issue Abstract 8. Prepare Judge s Docket Sheet 9. Index 10. Scan Documents

55 Case is Filed What s Next The judge will conduct a hearing to determine if the will should be admitted to probate as muniment of title. Proof Required as set forth in Estates Code

56 Order Admitting Will as Muniment of Title Estates Code When the judge has determined the will should be admitted to probate as a muniment of title, an order is issued. The order is sufficient legal authority for the named distributees to receive the assets of the estate to which they are entitled. The distributees may treat the property as their own.

57 Effect of Muniment of Title On Muniment of Title no executor or administrator is necessary and the heirs simply become owners of their portion of the estate. No letters, oaths or bonds are necessary

58 Clerk s Role The court clerk will provide certified copies of the Application, Will and Order Admitting Will to Probate as Muniment of Title

59 Report by Applicant After Probate Estates Code Unless waived by the court, the applicant for probate of the will must file with the court clerk a sworn affidavit stating specifically the terms of the will that have been fulfilled and the terms of the will that have been unfulfilled. This affidavit must be filed before the 181 st day after the will is admitted to probate as a muniment of title. Failure of the applicant to file such affidavit shall not otherwise affect title to property passing under the terms of the will.

60 Small Estates Affidavit Estates Code Entitlement to Estate Without Appointment of Personal Representative The distributees of the estate of a decedent who dies intestate are entitled to the decedent's estate without waiting for the appointment of a personal representative of the estate to the extent the estate assets, excluding homestead and exempt property, exceed the known liabilities of the estate, excluding any liabilities secured by homestead and exempt property, if:

61 Small Estate Affidavit Continued 1) 30 days have elapsed since the date of the decedent's death; (2) no petition for the appointment of a personal representative is pending or has been granted; (3) the value of the estate assets, excluding homestead and exempt property, does not exceed $50,000; (4) an affidavit that meets the requirements of Section is filed with the clerk of the court that has jurisdiction and venue of the estate; (5) the judge approves the affidavit as provided by Section ; and (6) the distributees comply with Section

62 Examination and Approval of Small Estates Affidavit Estates Code Examination and Approval of Small Estates Affidavit The judge shall examine an affidavit filed under Section The judge may approve the affidavit if the judge determines that the affidavit conforms to the requirements of this chapter.

63 Clerk s Role File mark Affidavit Assign cause number and court Assess and receipt fees Maintain record in small estates book or other prescribed media Index Scan Provide certified copies of recorded affidavit upon request. The certified copy is the authority by which estate assets are transferred to distributee.

64 Fees for Application to Probate Ector County $ Clerk LGC $ Library LGC $ 2.00 Judge LGC $ 5.00 Judicial Education LGC $ 5.00 Records Management LGC $ 5.00 Security Fee LGC $ Statutory/Constitutional Fee GC $ Civil Legal Services for Indigent LGC $ Court Reporter GC $ Sheriff s Fee/Posting LGC $ State Judiciary Fee LGC (A) $ 5.00 Appellate Fee GC & $ Court Records Pres. Fee GC $ Supplemental Guardianship Fee LGC (2)(E) $ State Electronic Filing System Fund GC $ Total The Law Library Fee and Sheriff s Fee for Posting is set by Commissioners Court thus the variance in fees from county to county

65 Fees for Small Estates Affidavit Ector County $ Clerk LGC $ Library LGC $ 2.00 Judge LGC $ 5.00 Judicial Education LGC $ 5.00 Records Management LGC $ 5.00 Security Fee LGC $ Statutory/Constitutional Fee GC $ Civil Legal Services for Indigent LGC $ Court Reporter GC $ State Judiciary Fee LGC (A) $ 5.00 Appellate Fee GC & $ Court Records Pres. Fee GC $ Supplemental Guardianship Fee LGC (2)(E) $ State Electronic Filing System Fund GC $ Total

66 Checklist When Filing New Case New Probate Checklist Add Case to Computer Enter Events Add Parties Issue Citation Docket Sheet Print Abstract Index Scan

67 Resource Materials Texas Estates Code Texas Rules of Civil Procedure Texas Rules of Court County Clerk Procedure Manual

68 Helpful Internet Websites Texas Constitution and Statutes Texas Office of Court Administration Texas Association of Counties

69 Q & A