The probate process, is the legal process that a will goes through to determine whether it is a valid will or it is not.  Once a judge declares the will is valid, then an executor or administrator is appointed. Upon appointing an executor or administrator a person’s (decedent) debts are paid and assets are distributed upon his or her death. Individual state laws direct the probate court how to distribute the deceased’s estate. State laws and procedures vary greatly, so it is important to consult a firm with expertise in this area of the law to ensure that the deceased’s assets are distributed correctly. Probate consists of laws dealing with the validity of wills, administration of estates and sometimes over the affairs of minors and persons adjudged incompetent. Texas has a simple and cost effective process to probate a properly drafted will.

Types of Probate:

Dependent Administration

In Texas, an estate may need to go through a dependent administration rather than an independent one. Usually, dependent administrations are more daunting than independent administrations, and the administration is heavily supervised by the Court.  That is why you need a knowledgeable attorney to guide you through the process. For example, the dependent administrator is required to get the Court's special approval in the following situations:

  1. Sale of real estate
  2. Sale of cars
  3. Sale of personal property
  4. Payment of debts
  5. Payment of expenses during the administration
  6. Payment of professional fees related to the estate (i.e. attorneys, accountants, etc.)

Generally, the process for obtaining the Court’s approval for any of these transactions requires the administrator to submit a written application for authority to pay the expenses and attach copies of the outstanding invoices or other information supporting the request.

How does the estate handle creditors?

Unlike the independent administration where creditors have unlimited options for obtaining payment, in a dependent administration, the Probate Code outlines very specific procedures the creditors must follow in a dependent administration. For instance, they must submit their Claim for payment in a very specific form, including certain required information.  Additionally, they only have a certain time-frame within which they can be paid, and they must take certain steps to ensure that they secure their Claim.  If a creditor fails to follow the requirements specifically, then the estate will no longer be liable to pay the debt.

Why a bond requirement?

Any dependent administrator is required to post a bond.  The bond is essentially an insurance policy taken out with a bonding company.  The administrator is asking the bonding company to ensure his or her proper performance of duties as administrator.  If the administrator violates his duties and, for instance, steals part of the assets of the estate, the bond company will reimburse the estate to make it whole for the administrator’s misdeeds.

The amount of the bond will be set by the Court, and the estate will be required to pay an annual bond premium.  This bond premium is much like a homeowners’ insurance policy premium. For instance, your home may be insured for $100,000.00, but the premium each year might only be $800.00.  Likewise, the Court might set a bond in the amount of $50,000.00, which would have a much lower premium amount of a few hundred dollars.

How long must a dependent administration stay open for?

In general, a dependent administration must remain open for at least six months. Because of timelines related to notice to potential credits, the Courts will require that the administration stays open for this length of time to ensure that all creditors have the proper time to be able to present their claims. Likewise, the 6 month period practically presents the quickest length of time that a dependent administration can be concluded because of the accounting requirements and the length of time involved in having to request court approvals for each transaction.

The 6-month requirement does not apply in independent administrations, and it, therefore, ends up being another reason why the dependent administration is going to be a lengthier process than the independent administration.

Why an accounting requirement?

The Texas Probate Code lays out very specific requirements that a dependent administrator account for their actions as the administrator.

Under the Code, the Administrator must file a sworn accounting at the end of each year of the probate administration and also at the conclusion of the probate administration. In the accounting, the Administrator must provide details related to the income of the estate received by the administrator during the year and also the expenses paid by the estate during the year. Likewise, the administrator must provide a listing of the assets that remain on hand in the estate at the end of the administration and a listing of all creditor claims that have been filed against the Estate during the year.

An executor of the estate may prefer to have a dependent administration. The two main reasons for choosing a dependent administration are--1) for those estates with high debts, it is more beneficial for the estate to have a dependent administration. Because of the stringent requirements that creditors have to follow to submit their claims, a dependent administration makes it harder for creditors to collect their money, or 2) If the executor anticipates fights among the heirs,  the executor may prefer to have the Court approve each and every action the administrator undertakes so that later disputes among the family members can be resolved through rulings by the Court rather than litigation against the executor.

Independent Administration

In Texas, an independent administration of an estate is one of the great differences between probate laws in Texas and probate laws in other states.  This type of administration is designed to allow executors or administrators to serve independently without the Courts' supervision.  The result is a speedy and efficient administration of the estate.

What are the roles of an independent executor or independent administrator/executor? (can you link this section with role of executor above?)

The independent executor is going to have the same responsibilities to the heirs and beneficiaries of the estate as any executor or administrator—he will be required to 1) collect the assets, 2) pay off any debts, and 3) distribute the assets according to the Will or according to Texas law if the Decedent did not leave a Will.  As part of this process, the independent executor is also required to satisfy a couple of requirements to the Court — 1) to publish notices to potential creditors in a newspaper and 2) to file an inventory with the Court showing the assets of the estate.

Muniment of Title

Historical Texas law created a unique concept known as the probate of a Will as a muniment of title. This concept is very unique to Texas, and it is generally not understood by attorneys in other states.  This mechanism provides for a streamlined probate process, does not require the appointment of an administrator or executor, and it is the only mechanism by which you can probate a Will in more than 4 years (a will must be probated within 4 years of death of decedent).

How it works

It only applies to estates where a valid will exists.  The probate of a Will as a muniment of title is a mechanism where a Decedent’s Will is filed for probate, the Court recognizes the Will, but does not appoint an executor or administrator to administer the Estate.  Rather, once the Court signs its Order establishing the Will as the Decedent’s true last Will, a certified copy of the Will and the Court’s Order can be used to transfer title in any property owned by the Decedent to those people listed in his Will.  In essence, the Will and the Order serve as an equivalent to a new deed to any real estate.

For example...if a person died with a will and the only property he or she owns is the homestead and all debts have been paid, the estate could benefit from a muniment of title*.

*this is not meant to be legal advice but just some issues to consider when choosing the type of probate proceeding for an estate. Call us today and make an appointment (281) 610-3829.

Probate Administration Issues:

Role of Executor

The independent executor is going to have the same responsibilities to the heirs and beneficiaries of the estate as any executor or administrator—he will be required to 1) collect the assets, 2) pay off any debts, and 3) distribute the assets according to the Will or according to Texas law if the Decedent did not leave a Will.  As part of this process, the independent executor is also required to satisfy a couple of requirements to the Court — 1) to publish a notice to potential creditors in a newspaper and 2) to file an inventory with the Court showing the assets of the estate.

The Executor or Administrator has essentially 3 functions, which are as follows:

  1. Identify and Collect the assets of the Decedent’s estate;
  2. Pay any debts that the Decedent owes at the time of his or her death; and
  3. Distribute the remaining assets according to either the Will or pursuant to Texas law if the Decedent died without a Will.

The executor or administrator bears a substantial responsibility to the heirs and beneficiaries of the Estate, as well as a corresponding duty owed to Probate Court.  Prior to agreeing to serve as the Executor, you should fully understand the responsibilities of doing so.  Failure to fulfill those obligations may subject the executor to being sued by the heirs.  If you are have been nominated to be an executor or are  considering applying to be the Administrator of an estate or have questions about your responsibilities for serving in that position, please feel free to contact the Mora Law Firm, who will be glad to assist you in understanding these duties.


Tax issues an executor or administrator may consist of:

  • Issues related to the Decedent's final tax return
  • The Estate tax return
  • Income tax returns for the Estate
  • Income tax consequences to the beneficiaries of the Estate
Avoiding Probate

In recent years, many news reports across the United States have touted the many reasons for attempting to avoid the probate process. They report that the process can be costly, time-consuming and frustrating.  However, as discussed elsewhere on our site, Texas is unique to most states. With the option for an independent probate administration, the cost and frustration associated with probate in most other states is completely avoided.In spite of the ease of the Texas probate process, many Texans have become convinced that they should attempt to avoid probate at all costs. In that effort, they have been advised that creating bank accounts as “joint tenants with rights of survivorship” or “payable on death” accounts is the best method of avoiding problems at death. Conversely, others have created Revocable Living Trusts as a method to avoid probate.

Unfortunately, both of these methods create costly pitfalls for the unwary.

Joint Ownership with Rights of Survivorship Accounts....

Upon death, bank accounts owned as joint tenants with rights of survivorship pass directly to the surviving account owners without passing under the Will or as part of the Decedent’s estate. These accounts can easily be created by completing the signature card at the bank where the account is held. Creating these accounts makes the transfer of the money in the accounts at death relatively easy.

Unfortunately, however, many people do not understand the implications of creating an account as joint tenants with rights of survivorship. For instance, many people as they age add one of their children to their bank accounts so that the child can assist them in paying bills, etc. While the intent is to solely add the child’s name for convenience, many people unknowingly check a box on the bank account agreement that says “joint tenant with rights of survivorship,” and they thereby leave the money in the account to that one child, rather than letting it pass under their Will at death.

Beneficiary Designations and Payable on Death (POD) Accounts....

Increasingly, banks and other financial institutions offer their customers the opportunity to name a beneficiary on their bank or brokerage accounts. In some cases, these as known as “beneficiary designations,” and in other instances, they are known as “payable on death” accounts. In either circumstance, the result is the same: upon the death of the owner of the account, the bank or brokerage firm will pay the funds in the account directly to the person(s) named as beneficiary or payable on death recipient.

The beneficiary's designation is a contract between the owner of the account and the bank or financial institution. You may find beneficiary designations on life insurance policies, retirement funds, and IRAs. These designations prevent the accounts from needing probate consideration. However, they also keep the accounts from being utilized as part of the estate plan created under the account owner’s Will.

Payable-on-death (POD) bank accounts are also an effective way to avoid probate. Any money in the POD account passes directly to the named beneficiary upon the person's death. The added benefit of a POD account is that the account holder retains exclusive rights to the account while he or she is alive, and retains the right to change the beneficiary to the account. Like the beneficiary designations, the POD accounts are not able to pass under the Decedent’s Will and be used as part of the estate plan put into place in the Will. Without proper coordination between the Estate plan and the beneficiary and POD designations, the estate may be subjected to substantial estate taxes.

For a full discussion of the importance of coordinating beneficiary and POD account designations with the provisions of your Will for proper estate planning, please see the Estate Planning Information Center on our website.

Revocable Living Trusts

Because of the complexities, cost, and time involved in the probate process in most states, many people exercise the option to create a Revocable Living Trust during their lifetime. In its most basic explanation, the Living Trust is a substitute for having a Will. Instead of having your assets distributed according to the provisions of a Will at the time of your death, the assets will instead pass pursuant to the terms of the Living Trust established during your lifetime.

In order to achieve this goal, you are required to create the trust during your lifetime and transfer all of your assets into the trust prior to your death. Upon death, all of the assets in the trust will be distributed pursuant to the terms of the Trust, rather than pursuant to your Will or as part of your estate.

While these trusts have great value in some states, they offer very little value in Texas. For a more complete discussion of these trusts, please see the Estate Planning Information Center of our website, where we provide a more complete discussion of the pros and cons of this option for avoiding probate.

In brief, these trusts provide little benefit because the probate process is so simple in Texas if you have a well-drafted Will. Additionally, very few people ever actually completely transfer all of their assets into the trust during their lifetime. As a result, assets remain outside the trust at death and are then subject to the probate process. Accordingly, you end up going through the probate process to address the issues that did not get transferred into the Trust, in spite of the fact that the goal of creating the Living Trust was to avoid probate altogether.

While these trusts have benefits in some specific situations, they are not an effective mechanism for avoiding probate in Texas.

Power of Attorney

Special Power of Attorney

This authority is for a particular purpose only and does not give authority for any act not specifically listed.  An example of a special power of attorney might be used to authorize someone (your attorney-in-fact) to perform real property transactions.  Under this power, they might buy, sell, lease or otherwise acquire or pass a right incident to real property.  Under this special power, your attorney-in-fact could not perform other business transactions such as conducting stock or bond transactions, operating a business owned by you, engaging in insurance transactions on your part or any other activity not specifically related to the exact power that you offered.

General Power of Attorney

Under a general power of attorney, you are giving your attorney-in-fact broad authority to transact all of the duties conferred by you of a particular kind or at a particular place.

A document creating a power of attorney may convey general powers, special powers or a combination of both.

A power of attorney may be for a finite and defined period of time or it may contain no such provision and may continue until it is revoked by the principal.

What happens when a principal advises his/her attorney-in-fact that the authority to act is revoked, but the agent/attorney-in-fact continues to deal with third parties as if the revocation had not been made?

The revocation does not automatically terminate the apparent authority of the agent/attorney-in-fact to deal with third parties.  The third party who does not receive actual notice from the principal of a revocation may be justified in relying upon the document and past dealings between the parties.  If a revocation is necessary, it is recommended that you notify all persons who have dealt with the attorney-in-fact, demand return of documents from the attorney-in-fact and file a formal revocation of record in the county records of each county where the power of attorney has been used or might be used.

What happens if a principal marries?

As with the death of the principal, the marriage of the principal subsequent to the transfer of power will automatically terminate that power.

What is a Durable Power of Attorney?

A durable power of attorney survives the disability or incapacity of the principal, but, as with any instrument requiring informed consent, cannot be executed after a mental disability occurs.  This instrument is particularly useful to persons who are concerned or may have reason to become concerned about possible diminished mental or physical capabilities in the future (i.e. all of us).  Example:  If one spouse suffers from any level of diminished capacity, it may be very helpful to give power of attorney to the unaffected spouse.  A durable power of attorney is so called because it survives the change in abilities and will contain words similar to the following:

“This Power of Attorney is not affected by subsequent disability or incapacity of the principal.”


“This Power of Attorney becomes effective on the disability or incapacity of the principal.”

When you give a power of attorney, do you give that person superior rights to make decisions for you?

The answer is NO.  Unless you have become incapacitated, you as the principal can almost always revoke the power of attorney.  (The cases where a power of attorney cannot be revoked are few, very special and far too complex to cover in this writing.)  In all but the rarest of situations, a power of attorney can be revoked by the principal at any time.

A common misconception by many in the public is that an attorney-in-fact exercises some sort of authority over the person who is the principal.  It should be understood without equivocation that this is not true.  Giving another person your power of attorney merely gives them the right to act for you in specific situations.  It does not reduce your power to act on your own behalf.

Authority over a person which is deemed to be superior over the rights of that individual is not the subject matter of a power of attorney.  Such authority over another person would be subject matter in a guardianship proceeding and should only be attainable after a hearing on the merits by a court of competent jurisdiction.  A power of attorney does not equate to a guardianship and should never be confused.

Persons who assist us by acting as our agent/attorney-in-fact can serve a very useful purpose in handling certain designated tasks for us.  Great care should always be taken when selecting such a person.

Healthcare Power of Attorney

A very special type of power is the healthcare power of attorney.  This instrument does not authorize anyone else to make medical decisions for you until and unless you are unable to do so for yourself.

It is almost certain that each of us will need to have another person act for us for some purpose at some time in our lives.  If you wish to decide for yourself who that person should be and to what extent they may act or not act, then you may wish to designate your attorney-in-fact and dictate what powers they may exercise on your behalf.