MUNIMENT OF TITLE 2019 Probate Academy Chapter 257 By: Heidi Easley, Victoria County Clerk Estates Code With excerpts by Rose Pietsch, Bastrop County Clerk And Linda Haney, Former Ector County Clerk
FILING AS A MUNIMENT OF TITLE There are 2 reasons a probate case can be filed as a muniment of title: If there are NO debts owed by the estate (this includes medicaid claims) other than any debt secured by a lien on real estate. If there is no administration necessary.
WHO CAN FILE? While most probate courts require an attorney to file to probate cases, a small number of courts will allow individuals to file a case. This usually only occurs when there is only 1 heir Always consult your judges before making an official policy to accept from private individuals It is better to err on the side of precaution due to the complex legal issues that could arise
FILING PROCEDURES The case will be electronically filed into Efile Texas* Verify party information Verify payment information Determine if all necessary documents have been presented for filing the Original Will should be brought in within 3 days after the e-filing of the application. * unless the case has been approved to be filed pro se
WHAT CAN YOU DO IF THEY DON’T BRING THE WILL IN WITHIN THE 3 DAYS? Contact the attorney and kindly remind them that the original will hasn’t been received in your office yet. Don’t set the matter for a hearing until you receive the original will in your office.
APPLICATION Contents of Application: §257.051 The application for the probate of a will as a muniment of title must state and aver the following to the extent each is known to the applicant or can, with reasonable diligence, be ascertained by the applicant: each applicant’s name and domicile: the last three numbers of each applicant’s driver’s license number and social security number; the testator’s name, domicile, and if known, age, on the date of the testator’s death;
the last three numbers of the testator’s driver’s license number and social security number; the date, and place of the testator’s death; the application is filed in the proper venue; that the testator owned property, including a statement generally describing the property and the property’s probable value; the date of the will; the name, state of residence, and physical address where service can be had of the executor named in the will; the name of each subscribing witness to the will, if any;
if one or more children was born to or adopted by the testator after the testator executed the will survived the testator and, if so, the name of each of those children; that the testator’s estate does not owe an unpaid debt, other than any debt secured by a lien on real estate, or that for another reason there is no necessity for administration of the estate; whether a marriage of the testator was ever dissolved after the will was made and, if so, when and from whom; and whether the state, a governmental agency of the state, or a charitable organization is named in the will as a devisee. If an applicant does not state or aver any matter required by Subsection (a) in the application, the application must state the reason the matter is not stated and averred .
THE WILL §257.052 Filing of Will with Application Generally Required (a) An applicant for the probate of a will as a muniment of title shall file the will with the application if the will is in the applicant’s control; (b) A will filed under Subsection (a) must remain in the custody of the county clerk unless removed from the clerk’s custody by court order .
WHAT IF A WILL IS NOT PRODUCED? Under Section 257.051, if an applicant for the probate of a will as a muniment of title cannot produce the will in court, the application must state: The reason the will cannot be produced; The contents of the will, to the extent known; and The name and address, if known, whether the person is an adult or minor, and the relationship to the testator, if any, of: • Each devisee; • Each person who would inherit as an heir of the testator in the absence of a valid will; and • In the case of partial intestacy, each heir of the testator.
THIS SLIDE SERVES NO PURPOSE BUT TO MAKE SURE YOU ARE STILL AWAKE!
CITATION AND COURT SETTING Calculate the hearing date – The hearing can not be held until on or after the first Monday following the expiration of 10 days from the posting of the citation, after 10:00 a.m. Once application has been accepted into your case management system: Issue your citation (EC 51.001-51.056 ) Forward to Sheriff or Constable for posting and any necessary service; Citations in Probate matters may not be served by a civil process server. They must be served by a Sheriff or Constable.
THE HEARING The Court will conduct the hearing to When the judge has determined the establish if the will should be admitted will should be admitted to probate as a to probate as a muniment of title. muniment of title, an order is entered. The order is sufficient legal authority for the named distributees to receive the assets of the estate to which they are Proof Required as set forth in Estates entitled. The distributees may treat the Code 257.054 is presented at the property as their own. hearing.
WHAT COMES NEXT? Following the Court Hearing: The Clerk will enter all case dispositions into the case management system. Certified copies of the Order Admitting the Will to Probate as a Muniment of Title and the Last Will and Testament of the Decedent are issued, if requested; No Letters or Administration of the Estate are necessary; The heirs of the estate become the owners of their portions; No bond is required.
APPLICANT’S REPORTING REQUIREMENT Estates Code 257.103 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.
CANCELLATION OF REGISTRATION ELECTION CODE SEC. 16.001 (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 Chapter 205 , Estates 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.
REFERENCE AND RESOURCE MATERIALS FROM: Estates Code Local Government Code Government Code Rules of Civil Procedure Victoria County Courts at Law website http://www.vctx.org/pdf/ProbatePolicy.pdf Supreme Court of Texas website http://www.txcourts.gov/supreme Office of Court Administration website http://www.txcourts.gov/
Small E state s Affidavit T e xas E state s Code Chapte r 205 By: He idi E asle y, Vic to ria Co unty Cle rk With Ro se Pie tsc h, Bastro p Co unty Cle rk 2019 T e xas Asso c iatio n o f Co untie s Pro b ate Ac ade my
Oh no ! I didn’ t ta ke the time to write my will!
Wha t is a sma ll e sta te a ffida vit? A Small E state Affidavit a llo ws a fa st tra c k re so lutio n o f a n e state thro ug h pro b a te c o urt. I t's a g o o d wa y to he lp re so lve fina l e state ma tte rs fo r a de c e a se d pe rso n who die d witho ut a will a nd with a " small e state ". Do n’ t c o nfuse “ fast trac k ” with “ e asy sub stitute ” fo r ha ndling a c a se witho ut a will.
A small e state is o ne in whic h the to ta l va lue o f the a sse ts o wne d b y a pe rso n who die d fa lls unde r the do lla r limit se t b y sta te sta tute s. T he pro b a te c o de in e a c h sta te de fine s wha t q ua lifie s a s a small e state a nd the filing rule s tha t must b e fo llo we d. I n T e xa s: Whe n a de c e de nt has no will and the value of his or le ss , the b e ne fic ia rie s o f the he r e state is $75,000 or e sta te c a n file a Sma ll E sta te Affida vit (swo rn sta te me nt) to c o lle c t the pro pe rty witho ut g o ing thro ug h the pro b a te pro c e ss.
E sta te s Code 205.001 E ntitle me nt to E sta te Witho ut Appo intme nt o f Pe rso na l Re pre se nta tive T he distrib ute s o f the e sta te o f a de c e de nt who die s inte sta te a re e ntitle d to the de c e de nt’ s e sta te witho ut wa iting fo r the a ppo intme nt o f a pe rso na l re pre se nta tive o f the e sta te to the e xte nt tha t e sta te a sse ts, e xc luding ho me ste a d a nd e xe mpt pro pe rty, e xc e e d the kno wn lia b ilitie s o f the e sta te s, e xc luding a ny lia b ilitie s se c ure d b y ho me ste a d a nd e xe mpt pro pe rty, if:
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