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© 2014, Paul Premack
 

San Antonio Express-News
March 18, 2008

Limits on Probate as Muniment of Title

copyright 2008, Paul Premack

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Dear Mr. Premack: I have a Will which gives all assets to my wife, or, in the event we are both deceased, to the surviving children of the marriage. Your book on Elder Law really helped us understand what happens in the event someone decides to protest the Will (feeling they were forgotten or whatever). Question 1: Who has legal authority to pay remaining bills, like the balance due on credit cards, under the Muniment of Title rules? We want our Wills to clearly identify someone to perform that function. Question 2: Can an heir present the Muniment of Title documents in Probate Court? Thank you. -- H.H.H.

You have been proactive by studying available materials on the law and by preparing Wills. Great care is required to be sure that the Wills provide the results that you intended. You would like to clearly identify someone to pay the remaining bills after your death; that role officially belongs to the Executor who you should be nominating in your Will.

You may find it natural to appoint your wife as Executor (and she, in her Will, would appoint you as her Executor). You should also select several alternates who would be willing to do the task should your spouse die or be unable to act. However, when you die your wife may already have authority to pay your remaining bills – without probate of your Will or official court appointment of her as Executor – if she is co-signer and co-owner on all of your bank accounts.

Co-ownership would give her access to the accounts and the right to pay your final bills, but it does not automatically give her ownership of your half of the account balance. To have automatic ownership of the entire account, it must be held as joint tenants with right of survivorship, which is appropriate under many circumstances. If so, then she can claim full ownership of the accounts just by presenting your death certificate to the bank.

However, even if she can claim ownership of the accounts without probate there may be other assets that require probate of your Will to change ownership. Your house is a prime example. If she has already paid off your debts, then the Muniment of Title process (only one of the various kinds of probate available under Texas law) would work well to transfer title into your wife’s name after your die.

Texas law requires that all debts be paid before a Will can be probated as a Muniment of Title (with the exception that there can be a mortgage on the homestead). Muniment of Title is sometimes desirable because it involves fewer steps than the probate process which is necessary to obtain official court appointment of the Executor named in the Will.

If there are debts that cannot be paid before probate, the law requires appointment of an Executor and no longer allows Muniment. The Executor’s role is to examine any claims that are brought against the estate, to approve or to reject the claims, and then to dole out the estate’s resources to pay as many claims as possible. Homestead and other remaining assets are then distributed as the Will instructs.

Your second question asks if an heir can present the Muniment of Title documents in Probate Court. Broadly speaking, any interested party (an heir named in the Will, the Executor, or even a creditor) can file an application offering the Will for probate. It is legal for an interested person to handle the probate pro se (that is, on a do-it-yourself basis). The work must be done by that person; you cannot, for instance, have your son prepare the papers for you because he would be practicing law without a license.

Typically the paperwork and choreography are complex and an attorney is hired to assist. Even knowing what kind of probate to ask for is an issue appropriate for consultation with an attorney. It costs less to do something right the first time rather than going back to repair something done wrong.

Prior Column: Devisee Can Find Out What Will Says
Next Column: Venue for Probate

Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

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