Key Takeaways
- The Uniform Probate Code is a uniform set of rules governing probate cases, which many states have adopted through their own legislation.
- Texas is not a Uniform Probate Code state; instead, it follows its own set of probate rules, known as the Texas Estates Code.
- The Texas Estates Code may be more flexible and streamlined than the Uniform Probate Code in certain circumstances.
- To understand how the Texas Estates Code works and may affect your own estate plan or the administration of your loved one’s estate, it’s important to consult a skilled probate administration attorney for more tailored advice and guidance.
Introduction
Probate is a complex process that involves transferring a deceased person’s assets to their identified beneficiaries or legal heirs, either with or without a will. The Uniform Probate Code is a model outline for legislation regarding inheritance and estate law. The Uniform Probate Code does not have any legal effect by itself; rather, it serves as a template, which states may choose to adopt as the state’s own probate laws. The uniform code provides legal standards and procedures, outlining how estate administration and related functions should be conducted. However, not all states have chosen to adopt these uniform procedures and standards into their own laws.
Texas is not a uniform probate code state, as it follows its own home-grown legislation to guide the steps involved in estate administration; however, it does adopt some similar concepts that are also found in the Uniform Probate Code. Understanding how the Texas Estate Code compares to the Uniform Probate Code is important for ensuring you follow the proper administration process for an estate in Texas and understand how laws might change if you move across state lines.
What is The Uniform Probate Code?
The Uniform Probate Code (UPC) is an outline for legislation regarding inheritance and estate law. The UPC was drafted by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1969.
The purpose of the UPC was to streamline the probate process and standardize state laws regarding wills and trusts nationwide. However, the Uniform Probate Code is not federal law, so states are not required to adopt it.
Currently, 18 states have adopted the UPC. These states are Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, South Carolina, South Dakota, and Utah. Adopting the UPC means that these states follow standardized rules to guide estate administration instead of passing their own unique legislation.
Is Texas a Uniform Probate Code (UPC) State?
Texas is not a Uniform Probate Code state, as it has enacted its own legislation for the estate administration process, outlined in the form of the Texas Estates Code. The first iteration of legislation to guide estate administration, the Texas Probate Code, was originally enacted in 1955, which preceded the UPC by about 14 years.
However, there are many similarities between the UPC and the Texas Estates Code. For example, many steps in the probate process are similar despite the unique nuances between the two different sets of codes. For most people, the slight differences will go unnoticed, but if you are moving from a UPC state to Texas, you may recognize the different procedures and options for navigating probate.
Overview of Probate Process in Texas
The probate process in Texas is often considered more streamlined in certain respects, as compared to the UPC followed in other states. Texas probate is characterized by the following aspects.
Historical Background of Texas Probate Laws
Texas passed its most recent iteration of its probate laws, the Texas Estates Code, in 2009, which became effective in 2014. Prior to the Texas Estates Code, the state followed the Texas Probate Code, enacted in 1955.
The adoption of the Texas Estates Code did not significantly alter the content of the original laws. Instead, the new legislation essentially reorganized existing rules to make them easier to navigate through with clearer titles, chapters, sections, and overall readability.
Key Features of the Texas Probate Process
Texas’s status as a non-UPC state often brings additional flexibility with multiple probate paths and the ability to reduce entanglement with the probate courts. Many experts consider the Texas probate process to be more efficient with its ability to be customized to the estate in question.
Key features of the Texas probate process include:
- Independent Administration – This benefit of Texas probate allows the executor or administrator to act without ongoing probate court supervision and is authorized when allowed in the will or agreed upon by all heirs.
- Small Estate Affidavit – A small estate affidavit allows for estates below a value of $75,000 to follow a simplified probate process.
- Muniment of Title – Muniment of title is a unique Texas process that allows for the simplified transfer of title of real estate property without an executor if a valid will exists and there are no debts.
These are just a few of the notable features of Texas’s unique probate process. However, probate is a detailed process that involves multiple steps, and your options for probate proceedings will depend on the size and complexity of the estate.
Differences from the UPC
Texas probate processes differ from the UPC in several ways. Although both are designed to facilitate a streamlined process, they have different approaches to handling certain situations, such as inheritance rights and simplified probate. Many people consider the Texas Estates Codes to allow more flexibility and efficiency than the UPC, which is more structured and often requires more formal steps.
Ultimately, key differences between the two processes include:
- Types of Probate – The UPC provides for three main types of structured probate, while Texas may have up to seven depending on the size and customized needs of the estate, when including small estate processes.
- Court Oversight – In Texas, court oversight is often less necessary in independent administration, while the UPC often requires close supervision from the probate court unless informal administration procedures are pursued.
- Muniment of Title – Unique to Texas, muniment of title allows for a simple probate when there’s a valid will and no unpaid debts to be resolved by the estate.
- Intestate Inheritance – Intestate succession laws that govern who inherits assets if there is no will are different from the UPC, namely that the surviving spouse will not automatically inherit the majority of the estate in Texas, while the spouse often receives a larger share of the estate under UPC.
Texas probate and UPC laws probate processes are similar in many ways, specifically in the steps involved between validating a will, inventorying an estate, paying debts and expenses, and distributing assets to beneficiaries. However, the key differences above may affect how these steps look and add unique nuances to the process.
Types of Probate in Texas
Probate processes are similar in Texas compared to the UPC, but there are more options for flexibility. Still, the following are the main types of probate and how they compare.
Informal Probate Proceedings
Informal probate is a form of the probate process that allows for the management and distribution of estate assets with minimal court supervision or hearings. This process is often quicker, less intensive, and more streamlined compared to formal probate, as there are fewer court requirements.
The Texas Estates Code does not recognize informal probate as an official type of proceeding. Instead, Texas allows for several types of streamlined probate proceedings in specific circumstances, such as small estate affidavits, standalone heirship proceedings, orders of no administration with family allowance, and muniment of title proceedings. Some legal processes, such as muniments of titles and small estate affidavits, may still require court action, but typically the court relinquishes control over the estate after an initial hearing.
In contrast, the UPC provides for a specific type of administration called informal probate. In UPC states, the majority of probate cases will be informal, meaning no court hearings are required. Informal probate is available under the UPC for any size of estate, regardless of whether the decedent left a will.
Independent Administrations
Texas probate procedures allow for independent administrations. This means that the estate representative can conduct estate business with minimal court supervision. An independent administration is often the most desirable type of administration because it is cost effective, but certain statutory requirements must be met before courts allow independent administration. A court will usually grant independent administration if requested in the will or if all heirs agree to independent administration in writing.
Unsupervised formal probate is a traditional court proceeding in UPC states. This process is similar to regular probate proceedings in non-UPC states, such as Texas. In UPC states, unsupervised formal probate may be used when the will is contested or if there are other disputes that cannot be resolved through the informal probate process. In contrast, Texas courts are less likely to order independent administrations if the probate proceedings are contested.
Dependent Administrations
In UPC states, a supervised formal probate is also a court proceeding, but it will only be used if the court finds it necessary. The process follows the same basic steps as unsupervised formal probate, except the court will be much more involved in monitoring the personal representative’s progress in administering the estate.
Texas allows for dependent administrations, which are roughly comparable to supervised formal probate proceedings found in UPC states. In Texas dependent administrations, the estate administrator, usually requiring the appointed estate representative to post an annual bond, file annual accountings, and seek court approval before taking certain actions. For example, an estate’s personal representative must obtain court approval to reimburse themselves for estate expenses, pay ongoing expenses, or sell estate property.
The administrator has the authority on qualification to pay certain expenses without additional court approval:
- Property insurance
- Property taxes
- Court costs (filing fees, citation, and posting)
- Bond premiums
For additional powers, the estate administrator must apply through the court and prove that this additional authority would be in the best interests of the estate and its beneficiaries.
Navigating Texas Probate Laws
Texas probate laws set clear guidelines for how the probate process should proceed and what procedures must be followed. The executor of the estate has the most consequential role for understanding Texas laws.
Steps that the executor must follow in the Texas probate process include:
- Petitioning to open probate – If there is a will, then you file an application asking the court to admit the will into probate. If there is no will, then you would file an application for letters of administration and for determination of heirs.
- Validating the will and appointing the executor – After the court receives an application to open probate, it holds a hearing to appoint an estate representative and declare the will, if it exists, as valid.
- Marshaling and inventorying all assets – Upon appointment by a probate court, the executor or administrator then gathers an inventory of all assets that will pass through the estate.
- Pay debts, expenses, and taxes – The estate representative uses estate funds to pay any valid debts against the estate, estate taxes, and expenses for managing estate property.
- Distribute estate assets – After all debts and expenses are settled, the executor or administrator then distributes estate assets to beneficiaries in accordance with the instructions in the will or with the court’s heirship judgment.
- Close the estate – While certain courts may allow estates to remain open indefinitely, it is often better to close the estate after administration and distribution. The closing procedures vary depending on whether the administration is independent or dependent.
As you navigate the probate process, it’s advisable to consult with an attorney who has experience in Texas probate and estate administration law. An attorney can support an executor in understanding their responsibilities and ensuring they follow the necessary steps for responsibly administering the estate.
Contesting Probate in Texas
You may contest a will or the probate process as long as you are considered an “interested person” who has legal grounds to do so. An interested person, as defined by Texas Estates Code section 22.018, includes heirs, devisees, spouses, creditors, or anyone else with a property right in or claim against the estate being administered.
Grounds for Contesting a Will
If you are an interested person to an estate in which a will has been presented for probate, you should consider whether you have grounds to contest it. You have grounds to contest a will if the facts surrounding the will’s execution support a type of contest recognized by Texas law. You must have legitimate grounds to contest a will, and you cannot contest a will simply because you do not like what it says or think it is unfair.
Grounds for contesting a will include:
- Lack of testamentary capacity or intent
- Fraud or forgery
- Undue influence or coercion
- Improper execution of the will or lack of required formalities
According to the Texas Estates Code, you have two years from the date the will is admitted to probate to pursue a will contest in Texas. However, if you believe any part of a will is invalid, you should contact an attorney as soon as possible. It is especially important to find an attorney before the will is admitted to probate.
Procedures for Disputing Probate
Interested parties may also contest the probate process if they believe that the estate representative is managing the estate irresponsibly. However, much like contesting a will, a party must have clear legal grounds to initiate such a contest.
The most common grounds for contesting an estate representative’s performance or misconduct:
- Failure to comply with a statutory duty, such as providing notice to beneficiaries, filing an estate inventory, appraising assets, filing a list of claims, or providing a requested accounting
- Failing to comply with the terms of a will or heirship order during estate distributions
- Breaching common law fiduciary duties to the estate and its beneficiaries, such as self-dealing for the representative’s personal benefit
- Grossly mismanaging the estate, especially if the mismanagement leads to a loss or waste of estate property
If you believe you have grounds to contest a will or the estate representative’s conduct, you should consult an attorney as soon as possible. An experienced attorney will review the facts of your case, assess whether you have grounds to initiate a contest, and offer recommendations for the best course of action to take.
Implications of Non-UPC Status for Texas
Because Texas is not a UPC state, individuals may have different expectations for what Texas probate laws entail, especially if they move to Texas from another state or own property in multiple states. It’s important for individuals from other states to recognize that the probate laws and processes that apply in their home state or another state where they own property may not work the same way in Texas.
It’s important to consider a state’s unique probate laws as an element of your estate plan so you know what to expect during estate administration. If you have an estate plan you drafted in a separate state or own properties in multiple states, you should consult an estate administration attorney to understand how the changes in laws across state lines might affect how your estate may be distributed.
Contact RMO Lawyers for Support With Texas Probate
Texas is not a UPC state; instead, it follows its own Estates Code. If you move to Texas from a different state, it’s important to understand what separates the Texas Estates Code from the UPC. However, probate is a complex process, so if you need support in understanding probate or how to navigate it, you should contact a skilled attorney as soon as possible.
If you are experiencing issues during probate, the team of skilled probate administration attorneys at RMO may be able to help. Our team has decades of experience in probate administration and litigation in Texas, understanding all the ins and outs of Texas probate law. If a dispute arises, our probate litigation attorneys may be able to support you in seeking a resolution sooner rather than later.
Schedule a consultation to discuss your case and what your next steps may be.
Glossary
Intestate Succession – The process in which assets from a deceased individual’s estate are distributed in accordance with state law. Assets from an estate with an omitted heir will pass through the intestate succession process to determine which beneficiaries will receive what shares of assets.
Uniform Probate Code – A set of laws created by the Uniform Law Commission to attempt to standardize state laws governing wills, trusts, and estates in the United States.
Texas Estates Code – A set of laws related to the processes in Texas, including estate administration, probate, wills, intestate succession, guardianship, and durable powers of attorney.