Who Can Probate a Will?

The Texas Estates Code states that only certain people can file an application to probate a will. The ability to file an application to probate a will is called “standing.” In order to have standing to file for the probate a will, a person must be:

  • An executor or administrator named in a will;
  • An independent administrator who has been designated by all the heirs of the decedent; or
  • A person interested in the estate (such as a creditor)

What is a muniment of title?

There are two ways to admit a will to probate: for the administration of the estate, or as a muniment of title.

Administration is the distribution of assets and payment of debts. If there is no need for a full administration, an applicant can ask the court to probate the will as a muniment of title. As a muniment of title, the will serves to transfer title of real or personal property but does not allow the administration of the estate.

The requirements for being able to probate a will as muniment of title are:

  • The decedent died leaving no debts other than a mortgage;
  • There is a valid will that has not been revoked;
  • The decedent has not received Medicaid benefits since March 1, 2005; and
  • There is no need to administer the estate

To probate a will as a muniment of title, an application must be filed with the probate court and a hearing held to determine if all the requirements have been met.

How long do I have to probate a will in Texas?

Generally, a will must be offered for probate in Texas within four years of the date of death.

A will can be admitted as a muniment of title more than four years after the decedent’s death if the applicant is not “in default.” Being in default means not using reasonable diligence to probate a will. To file a will more than four years after the death will incur further notice requirements to the beneficiaries of the will.

Generally, if someone does not know a will exists and therefore does not offer it for probate within four years, they will not be held in default. However, default is decided on a case by case basis.

Do I need the original will to probate?

In order to probate a will, the original will must be delivered to the probate court within days of filing the application. In limited circumstances, a copy of the will can be admitted to probate if the original cannot be found. To probate a copy of the will is much more difficult than probating the original will.

A photocopy of a will is treated as evidence of a lost will, and therefore requires the same proof as required of a lost will.

The requirements are:

  • A diligent search for the original will has been conducted and the original cannot be found;
  • The testator did not destroy or revoke the original will;
  • The will was validly executed under the laws of the State of Texas; and
  • The contents of the will can be proved by testimony.

The proponent of the will must provide proof as to why the original will cannot be produced. There is no guarantee that a probate judge will find a photocopy valid and admit it to probate.

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