The Uniform Probate Code, abbreviated as the UPC, is model legislation regarding inheritance and estate law. The UPC was drafted by the National Conference of Commissioners on Uniform State Laws to streamline the probate process and standardize state laws about wills and trusts across the country.
Texas is not a Uniform Probate Code state, and it maintains its own approach to probate administration. However, Texas has incorporated the UPC into some of its laws under the Texas Estates code, including its durable power of attorney statute, guardianship, and other sections.
What Is Uniform Probate Code?
The UPC is a uniform act that states are encouraged to enact through their own legislation. About 18 states have adopted the UPC in its entirety, although some minor provisions may vary among jurisdictions. Several other states, including Texas, have adopted certain portions of the UPC while maintaining their independent probate codes.
Probate is the process in which a court legally recognizes a person’s death and determines whether the deceased person’s estate is administered independently or dependently. The Texas Estates Code Section 22.029 provides that “probate matter,” “probate proceeding,” “proceeding in probate,” or “proceedings for probate” are synonymous and include a matter of proceeding relating to a decedent’s estate. The probate administration involves collecting and safeguarding estate assets, payment of the deceased person’s debts, and the distribution of estate assets. The court’s role is to facilitate this process and protect, when necessary, the interests of all creditors, beneficiaries, or heirs.
There are three different types of probate under the UPC: informal, unsupervised formal, and supervised formal.
In Texas, a person’s probate process is determined by whether there is a will, the estate’s value or liabilities, whether the beneficiaries or heirs will consent to limited court supervision, or whether the terms of the will allow an independent administration or require a dependent administration. Texas’ three types of probate proceedings when the deceased (also known as decedent) has a will are: an independent administration, dependent administration, and muniment of title. Texas has options when a person dies intestate (without a will): small estate affidavits, heirship affidavits (limited to real property), or an heirship proceeding.
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Informal Probate
In UPC states, the majority of probate cases will be informal, which means there are no court hearings required. Informal probate is available under the UPC regardless of whether the decedent left a will. While Texas allows some probate administration alternatives for smaller estates or when specific circumstances are met, such as small estate affidavits, affidavits of heirship, and muniments of title, informal probate is available for estates of any size under the UPC. Muniments of title and small estate affidavits still require some court action but it is limited compared to a full probate proceeding.
Unsupervised Formal Probate
Unlike informal probate, unsupervised formal probate is a traditional court proceeding in UPC states. It is somewhat comparable to regular probate proceedings in non-UPC states like Texas. Typically, in UPC states, unsupervised formal probate is only used if the will is contested or there are other disputes that cannot be resolved through the informal probate process.
Texas courts allow formal probate proceedings with limited court supervision, which is called an independent administration. An independent administration is the most common because it is cost effective but certain statutory requirements must be met before courts allow independent administrations.
Supervised Formal Probate
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. However, the court will be much more involved in monitoring the personal representative’s progress. For instance, the judge may require the personal representative to submit regular accountings and get court approval before making any distributions.
Texas courts call such proceedings dependent administrations and usually require the appointed estate representative to post an annual bond, file annual accountings, and seek court approval before taking certain actions. For example, a dependent administrator must ask for court approval to pay attorneys’ fees or claims, reimburse herself for estate expenses, to pay ongoing expenses or to sell estate property. The dependent 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
If the dependent administrator wants additional powers, he or she must apply and prove that such power is in the best interest of the Estate and/or beneficiaries.
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Can I Dispute or Contest Probate?
Yes. If a will has been admitted to probate, you may dispute or contest it, as long as you are considered an “interested person” and you have the legal grounds to do so.
Under Texas Estates Code Section 22.018, interested persons include heirs, devisees, spouses, creditors, or anyone else with a property right in or claim against the estate being administered. Only interested persons can contest a will in Texas.
Additionally, you can’t dispute the probate of a will just because you don’t like what it says or think it is unfair. Rather, you need legally recognized grounds for contesting the will’s validity.
Some of the most common reasons a will can be contested include:
- Lack of testamentary capacity or intent
- Fraud or forgery
- Undue influence or coercion
- Improper execution of the will or lack of required formalities
You can also dispute how the probate is being administered. The most common grounds for contesting how a probate is being administered are:
- Failure to comply with a statutory duty including provide notice to beneficiaries, file an inventory, appraisement, and list of claims, or to account (once demanded)
- Failure to comply with terms of Will or Heirship Order including distributions
If you are interested in disputing the validity of a will that has been admitted to probate or disputing how the probate is being administered, you should consult with an experienced probate litigation attorney as soon as possible. A knowledgeable lawyer can review the facts of your case and make recommendations as to the best course of action to take.