San Antonio, Texas (210) 826-1122
Bellevue, Washington (425) 296-2919



PAUL PREMACK, JD, CELA*
8031 Broadway
San Antonio, TX 78209
*Licensed in Texas
BENJAMIN PREMACK, JD** 
11900 NE 1st Street
Bellevue, WA  98005
**Licensed in Washington State & Colorado


San Antonio Probate, San Antonio Estate Planning, San Antonio Elder Law

 

San Antonio Express-News
January 23, 2007

Who can File Will for Probate?

copyright 2007, Paul Premack

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Dear Mr. Premack: Is the executor of a Will the only person who can file the Will for probate? I have a "Waiver and Renunciation of Right to Letters" form. Can this be used to waive the rights of the executor so I may file the Will myself? MJE

There is a difference between the legal right to file a Will for probate (that is, to ask the court to review its validity) and the legal right to serve as Executor of a Will that has been admitted to probate. Under the Texas Probate Code, a Will can be filed for probate by any interested party.

For instance, the person offering the Will for probate could be someone named in the Will as an heir, could be a creditor who needs the estate administration to begin in order to be paid, or could be one of the successor Executors named in the Will. Typically, the "application for probate" and the "application for appointment of an Executor" are one integrated court filing, but they can legally be filed separately.

Often when the person nominated as Executor in a Will is too ill to act, or feels that the job is too much of a burden, that person is free to decline the position. Signing a Waiver and Renunciation of Right to Letters is a direct way to refuse the job. Once refused, the job of Executor passes to the alternate identified in the Will.

If there is no alternate Executor identified in the Will, it can still be admitted to probate. The law identifies this process as "Administration with Will Annexed" because the Will’s instructions regarding distribution of the assets remains intact even though, in the absence of an Executor, an "Administrator" must be selected by the court.

There are three chief differences between an Administrator and an Executor. First, while the law requires a bond to be posted by both, only the Executor’s bond may be waived under the terms of the Will. Second, Administrators are likely to be supervised by the court while Executors are likely to serve without supervision. Finally, the powers an Executor may wield (like the sale of a parcel of real estate) are granted by the Will while the powers an Administrator may wield require court authorization.

With or without the "Waiver and Renunciation" you can file the Will for probate if you are an interested party. You may or may not become Executor or Administrator, but you can bring the Will to the court’s attention so it can determine who is legally entitled to be in charge of the estate.

Dear Mr. Premack: When can a Muniment of Title be used instead of a probate? CB

Legally, Muniment of Title is probate. Probate, in its broadest sense, means settling the financial affairs of a decedent. There are several categories. First, the law provides for Dependent Administration of an estate. This is used when there is no Will, or when the Will is faulty, or when the Will fails to appoint an Executor.

Second, the law provides for Independent Probate. This is used when the Will identifies an Executor and contains proper language to dispense with court supervision.

Third, the law provides for Muniment of Title. This can be used only when there are no claims against the estate (no debts to be paid) because the process does not include appointment of an Executor or an Administrator. Muniment avoids several legal steps that are required in Independent Probate, so it can be less expensive.

The word "Muniment" itself creates some confusion. There is a bill pending before the legislature to begin calling this process "Probate without Administration". The legalities will not change, just the label.

Prior Column: Presumption of Competence
Next Column: Overcoming the Statute of Limitations on Probate 
Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

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