Executor vs. Administrator
The individual responsible for administrating the estate of the decedent is called a personal representative. A personal representative is either an “executor” or an “administrator”. A personal representative is an executor if the decedent had a will and named someone to act as executor of that will. A personal representative is an administrator if there was no will or if the will did not name someone to act as executor.
Independent vs. Dependent Administration
In 1843, Texas was the first state to begin allowing probate of estates through independent administration. Independent administration is the administration of a decedent’s estate without court supervision. This alternative is cheaper and faster than a dependent administration.
Dependent administration is a court supervised administration of the decedent’s estate. Some of the negative aspects associated with dependent administrations are bond requirements, accounting requirements and having to obtain court permission for most actions. Dependent adminitrations can occur for several reasons. Some examples are: (1) the will required dependent administration; (2) the will named an executor but failed to appoint them as “independent” (this is often seen in a do-it yourself or out of state will); (3) the will completely failed to name an executor and the distributees request dependent administration and (4) when there is no will and the distributees request dependent administration.
In both independent and dependent administrations, either an executor or administrator will be appointed. At a minimum, the personal representative (or its attorney) will attend at least one hearing to have the Last Will admitted to probate and to obtain Letters Testamentary. In addition, they will subsequently be required to file an Inventory.
This is a court proceeding which requires the attorney to prove the identity of the decedent’s heirs and often occurs when a decedent dies without a will. The form of proof typically comes in the form of live testimony from two disinterested witnesses, who will also be cross-examined by an attorney ad litem. A Judgment Declaring Heirship signed by a judge legally determines the heirs of a decendent but does not affect administration of the estate. This type of proceeding is frequently used in conjunction with an Independent or Dependent Administration, or it can be used to transfer title to non-homestead real property when the Small Estate Affidavit is not an option.
Muniment of Title
Probating a will as a muniment of title is a quick and cost-effective manner to probate when there is no need for administration of the estate. The purpose of this limited form of probate is to provide continuity in the chain of title to estate properties and assets by placing the will on the public record. A court may admit a will to probate as a muniment of title when there are no unpaid debts of the estate other than debts secured by real property, or if the court determines for other reasons there is no need for administration. When a will is probated as a muniment of title, Letters Testamentary are not issued to an executor and no Inventory of estate assets is required.
Small Estate Affidavit
Probate assets can be transferred with this type of affidavit without a court hearing and without any administration if: (1) the decedent died without a will; (2) no personal representative has yet or will be appointed; (3) the estate is solvent; (4) the value of the probate estate is $50,000 or less and (5) there is no real estate other than the homestead.
Affidavit of Heirship
If real estate is the only asset, title can be transferred with this type of affidavit without a court hearing and without any administration, This can be a useful tool for dealing with a gap in title. Affidavits of heirship are admissible in actions concerning title to real estate if they have been of record for 5 years or more. Occasionally title companies will rely on them even if they have been of record for less than 5 years.