Sometimes, even though the decedent passes and leaves a valid Will, it may not make sense to open a true probate administration. In those cases, the Texas Estates Code fortunately provides an alternative – probating the Will as a muniment of title.
The term “muniment” may be unfamiliar. It is an uncommon word that simply means a document or instrument. The Will, in this case, becomes another document in the “chain of title” – similar to a deed or an affidavit of heirship.
To probate a Will as a muniment of title, all of the other requirements of probate (valid, written Will, properly proved, etc.) still apply. In addition, in order to be eligible for the muniment of title, the decedent must have been debt-free (except for a house mortgage), at the time of their death.
While probating a Will as a muniment of title is generally much simpler than a traditional probate, it is still a court proceeding. Accordingly, in Texas, most courts will require you to retain a probate attorney – the rationale generally given for this is that representing an estate is, like representing another person, something that only an attorney may do (in order for a probate proceeding to be pro se, the deceased would have to appear in court!) This is in contrast to certain other probate alternatives such as affidavits of heirship, that do not necessarily require an attorney.
The steps to probate a Will as a muniment of title are similar to, but somewhat more condensed and simplified than, the steps required for a traditional probate administration. Additionally, a muniment does not require an executor or personal representative. The first step to initiate the Muniment of Title process is to file a signed Application to Probate Will as a Muniment of Title, together with the required filing fee.
Then, your attorney will submit certain original documents to the Bexar County Probate Clerk’s office (or the applicable Clerk’s office of the County the action is proceeding in). These documents will generally include: (1) the original written, valid, properly proved Will, and (2) a certified copy of the Death Certificate. These requirements are very similar to the requirements of the Bexar County Probate Clerk for opening a traditional probate administration.
Your attorney will also likely file an affidavit from the will’s beneficiaries consenting to both the filing and to the procedure, in order to speed along the process of serving parties in interest.
After all of these documents have been filed with the court, the sheriff is required to notify the public of the probate filing. This is done by posting a written notice on the courthouse steps containing information about the probate. Under Texas law, this public notice on the courthouse steps must remain for at least ten days, in order to ensure that notice and due process have been given to all parties who may not have otherwise received notice under the proceeding.
Once the ten-day waiting period has ended, your attorney may request that the probate court set a hearing. Depending upon how busy the court is, the process of obtaining a hearing date that works for all parties may take some time (although it is nonetheless considerably faster than the process of opening a traditional probate administration).
At the hearing, the judge will consider the record, including both written evidence and verbal testimony, and come to a determination regarding the Application to Probate Will as a Muniment of Title.
Additional witnesses may also be required at the hearing, depending upon how the decedent’s Will was drafted. Your attorney will be able to provide clarification on the necessity (or not) of additional witnesses.
Your attorney will draft two documents for you to sign at the hearing (or immediately thereafter). One of these documents, the Proof of Death and Other Facts, is a document signed and sworn under oath attesting to certain information relating to the decedent’s death – time of death, place of death, place of residence, and existence of a valid will.
The other document is a proposed Order Admitting Will to Probate as a Muniment of Title. This order will be signed by the judge after the judge hears the Application, if he or she agrees with the findings proposed therein.
The Applicant must also sign and swear an Oath of No Debts Against the Estate, which attests to precisely what it sounds like. Recall that at the beginning of this article, we discussed that using the Muniment of Title process is only available for estates that owe no debts apart from a house mortgage. This document is meant to certify that condition has been met.
Both of these documents will be filed with the Probate Court, as part of the Probate as a Muniment of Title process. Depending on how the decedent’s Will was arranged, it is possible that more documents and additional witnesses will be required. Your attorney will be able to explain more about this process.
After the hearing has concluded, there are only a few ongoing requirements remaining (unlike the case of a traditional probate administration, which can potentially have many ongoing requirements). For example, depending upon the circumstances, the Applicant may be required to file a Compliance Affidavit within 180 days. This Compliance Affidavit is a signed and sworn document stating that the required distributions have been made.
It is important to note that the State of Texas has a four-year statute of limitations to file a Will as a Muniment of Title. The only notable exception to this rule is if the person applying for a probate “failed to make conscientious decisions in regard to timely matters”. An individual who simply does not know that the Will exists also would fall under this exception if the individual did not ever act to discover that there ever was a Will within that four-year period.
If you would like to explore whether a Muniment of Title is a good fit for your situation, call your San Antonio probate attorney at Law Offices of Ryan Reiffert, PLLC for a free consultation.