Probate refers to the process of transferring a deceased person’s property according to the terms of the person’s Will or based on the laws of intestacy if the person did not have a Will. The process is a judicial one, meaning it has to go through the Court, and the executor is charged with following certain legal procedures before property can be transferred. While this may seem daunting, we help our clients get through the process as efficiently and cost-effectively as possible. We also advise our clients when less expensive probate alternatives are available to meet their needs.


Traditional probate refers to the process where the Court enters an Order admitting the Will to probate and appointing an Executor. The Executor receives Letters Testamentary which he/she presents to banks and other third parties holding Estate assets in order to transfer assets to the Estate. The Executor pays any debts owed by the Estate out of the Estate assets and distributes the remaining assets to the beneficiaries named in the Will. The Executor is also charged with providing certain notices to beneficiaries and creditors and preparing an Inventory of the Estate’s assets. Traditional probate is necessary when there are assets passing under the Will and there are one or more unpaid creditors of the Estate other than a mortgage on a homestead and in cases where other action is needed to administer the Estate.


Muniment of Title is a lesser proceeding than traditional probate in that it does not require the appointment of an Executor, notices to beneficiaries and creditors, or an Inventory of assets passing to the Estate. This proceeding is available when the decedent had a Will but had no unpaid debts other than a mortgage on the decedent’s homestead, was not receiving Medicaid benefits, and there is otherwise no need for an administration or issuance of Letters Testamentary. This proceeding generally costs less than, and is preferable over, a traditional probate proceeding when eligible. An experienced probate attorney can help you evaluate whether this option is available and advisable based on your facts and circumstances.


In cases where the deceased person did not have a Will and an administration is otherwise required, the deceased person’s heirs must apply for a judicial determination of heirship and for issuance of Letters of Administration in order to administer the Estate and transfer title of assets from the decedent to the heirs. A judicial determination of heirship is a Court Order defining who the heirs of the decedent are and their share of assets under the applicable Texas laws of intestacy (laws that apply when there is no Will).

The person applying for judicial determination of heirship also often files an application for administration seeking issuance of Letters of Administration. This process has more steps and is more expensive and less desirable than seeking either Traditional Probate or Muniment of Title, but may be necessary in cases where the decedent had no Will.

If all of the heirs entitled to receive a portion of the estate consent, and none of the heirs are minors, the Court may appoint an Independent Administrator and order the issuance of Letters of Independent Administration. Letters of Independent Administration are generally the equivalent to Letters Testamentary (Letters Testamentary get issued in a Traditional Probate), but for cases in which there is no Will. The Independent Administrator is akin to an Executor and has the authority to sell estate assets, pay creditors, and distribute estate assets to heirs without further order of the Court.

In cases where there are minor heirs or where not all of the heirs consent to the appointment of an Independent Administrator, the Court will appoint a Dependent Administrator and order the issuance of Letters of Dependent Administration. Dependent Administrators do not have authority to sell estate assets, pay creditors, or distribute assets without specific authority from the Court. This specific authority requires the preparation and filing of additional Court pleadings and Court orders, which can increase costs to the estate. For this reason, Dependent Administrations are more expensive and typically less desirable than Independent Administrations but may nonetheless be necessary under the circumstances.


If the decedent did not leave a Will, but the assets of the estate, excluding the homestead, do not exceed $75,000 in value and the value of the assets, excluding the homestead and exempt property, exceed the liabilities of the Estate, the beneficiaries of the estate may opt to pursue transferring title of the decedent’s assets by a Small Estate Affidavit. The Small Estate Affidavit contains information regarding the decedent’s heirs, property, and debts and is signed by the heirs and two disinterested witnesses with personal knowledge of the information. The Affidavit must be filed with and approved by the applicable Court.

The Small Estate Affidavit is less costly than, and preferable over, a Judicial Determination of Heirship and Administration under eligible circumstances. Small Estate Affidavits typically get used when the decedent died without a Will and had one or more bank accounts totaling less than $75,000 that did not have beneficiary designations.


In some cases, title to real property can pass to the decedent’s heirs by an Affidavit of Facts and Identification of Heirs, also referred to as an Affidavit of Heirship. This is a document that contains certain information regarding the family history of the deceased person and his or her ownership of real property. Two disinterested persons with personal knowledge of this information sign the Affidavit before a notary and the Affidavit gets recorded in the Official Public (property) Records of the county in which the property is located. The recording of this Affidavit establishes chain of title from the decedent to the decedent’s heirs.

Affidavits of Heirship are available when there are no debts against the estate and the decedent did not have a Will or there is a Will, but the heirs of the decedent are the same persons who would take under the Will and there is otherwise no need for an administration. This procedure is less expensive than probate and other non-probate options and is generally preferable over other options to transfer title of real property to heirs in eligible cases where there is otherwise no need for an administration.


Let an experienced probate attorney listen to you as you describe your facts and your goals and help you decide what option best meets your objectives. Call us today at 409-257-7878 to schedule a consultation. You can also contact us by clicking here.