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. --
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
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.