# Texas Probate and Estate Title Issues

## Table of Contents
1. [Overview](#overview)
2. [Types of Probate Proceedings](#types-of-probate-proceedings)
3. [Muniment of Title](#muniment-of-title)
4. [Independent Administration](#independent-administration)
5. [Dependent Administration](#dependent-administration)
6. [Heirship Proceedings](#heirship-proceedings)
7. [Affidavit of Heirship](#affidavit-of-heirship)
8. [Small Estate Affidavit](#small-estate-affidavit)
9. [Transfer on Death Deeds (TODDs)](#transfer-on-death-deeds-todds)
10. [Lady Bird Deeds](#lady-bird-deeds)
11. [Community Property Survivorship](#community-property-survivorship)
12. [Title Examination Checklist](#title-examination-checklist)

---

## Overview

Texas estate and probate title issues require careful analysis under the Texas Estates Code and related statutes. The method of estate administration affects how title passes and what documents are required for insurable title.

**Key Principle**: Texas law favors independent administration with minimal court supervision. However, the examiner must verify proper authority at each step.

**Statutory Framework**:
- Texas Estates Code (effective January 1, 2014, replacing Texas Probate Code)
- Texas Property Code (for TODDs, survivorship agreements)
- Texas Family Code (community property)

---

## Types of Probate Proceedings

### Decision Tree: Which Proceeding?

```
Was there a Will?
├── YES → Does Will waive bond and appoint independent executor?
│   ├── YES → Independent Administration (most common)
│   └── NO → Dependent Administration OR Muniment of Title
└── NO (Intestate) →
    ├── Are there debts? → Dependent Administration or Heirship
    └── No debts? → Heirship Proceeding or Affidavit of Heirship
```

### Comparison Table

| Proceeding | When Used | Court Supervision | Title Document |
|------------|-----------|-------------------|----------------|
| Muniment of Title | Will exists, no debts, no administration needed | Minimal (order only) | Order Admitting Will as Muniment |
| Independent Admin | Will names independent executor | Minimal | Letters Testamentary + Deed |
| Dependent Admin | No will or will requires supervision | Full court approval | Court Order + Executor's Deed |
| Heirship | No will, need court determination | Judgment only | Judgment Declaring Heirship |
| Affidavit of Heirship | No will, informal (not court proceeding) | None | Recorded Affidavit |
| Small Estate Affidavit | Estate under $75,000, no will | Minimal | Court-approved Affidavit |

---

## Muniment of Title

### Tex. Estates Code §§ 257.001-257.153

**Purpose**: Admit will to probate solely as evidence of title transfer—no administration of estate.

### Requirements

1. **Valid Will**: Must be self-proved or proved by testimony
2. **No Necessity for Administration**:
   - No unpaid debts (except secured by real property)
   - No need to administer estate assets
3. **Four-Year Filing**: Application filed within 4 years of death (Tex. Estates Code § 257.051(a))
4. **Texas Jurisdiction**: Decedent domiciled in Texas OR owned Texas real property

### Title Examination

**Required Documents**:
- [ ] Certified copy of Order Admitting Will to Probate as Muniment of Title
- [ ] Certified copy of the Will
- [ ] Death certificate (verify decedent identity)

**Verify in Order**:
- Court found no necessity for administration
- Will was properly proved
- Legal description matches (or covers) subject property
- Order is final (appeal period expired)

**Red Flags**:
- Order more than 4 years after death without explanation
- Debts listed in application
- Will contests noted
- Property not specifically devised (passes under residuary clause—verify)

### Sample Language Check

Order should contain language similar to:
> "IT IS ORDERED that the Last Will and Testament of [Decedent] be admitted to probate as a muniment of title only, there being no necessity for administration of said estate."

---

## Independent Administration

### Tex. Estates Code §§ 401.001-401.006

**Most common form of Texas probate** for testate estates.

### Types of Independent Executors

| Type | Authority Source | Requirements |
|------|------------------|--------------|
| Named in Will | Will provision | Will must expressly grant independent authority |
| Court-Appointed | All distributees agree | Tex. Estates Code § 401.002 |

### Title Examination

**Required Documents**:
- [ ] Certified Letters Testamentary (check date—valid?)
- [ ] Certified copy of Will
- [ ] Death certificate
- [ ] Executor's Deed (if conveying)
- [ ] Affidavit of Independent Executor (if required by title company)

**Verify**:
1. **Letters Testamentary**:
   - Still valid (not revoked)
   - Executor has authority to sell real property
   - No co-executors requiring joint action

2. **Will Provisions**:
   - Grants independent administration
   - Grants power to sell real property without court order
   - Check for specific devises vs. residuary

3. **Deed Execution**:
   - Signed as "Independent Executor of the Estate of [Decedent]"
   - Proper acknowledgment

### Power of Sale

**Standard 8.40**: An independent executor has implied power to sell estate real property unless the will restricts this power.

**Watch for**:
- Wills that require specific devisees' consent
- Wills that limit sale to specific purposes
- Wills that grant life estates (executor cannot convey fee simple)

### Time Limitations

- **Letters valid indefinitely** unless revoked or executor removed
- **No automatic expiration** for independent administration
- **Title companies may require**: Updated Letters or Affidavit confirming no revocation

---

## Dependent Administration

### Tex. Estates Code §§ 351.001 et seq.

**Full court supervision required** for all estate actions.

### When Required

- Will does not waive bond or grant independent powers
- Will contest pending
- Court finds independent administration inappropriate
- Creditor or interested party objects

### Title Examination

**Required Documents**:
- [ ] Letters Testamentary or Letters of Administration
- [ ] Court Order authorizing sale
- [ ] Court Order confirming sale (if required)
- [ ] Executor's/Administrator's Deed
- [ ] Return of Sale (filed with court)

**Court Order Must Authorize**:
- Specific property to be sold
- Terms of sale (price, cash/credit)
- Private sale vs. public auction

### Sale Procedures (Tex. Estates Code §§ 356.001-356.655)

**Private Sale**:
1. Application to court
2. Court order authorizing
3. Sale at or above appraised value
4. Report to court
5. Court confirmation (in some cases)

**Public Sale**:
1. Application to court
2. Order for sale
3. Notice published
4. Sale conducted
5. Report and confirmation

### Red Flags

- Sale without prior court authorization
- Sale below appraised value without court approval
- Missing confirmation order when required
- Letters expired or revoked

---

## Heirship Proceedings

### Tex. Estates Code §§ 202.001-202.257

**Judicial determination** of who inherits when there is no will (intestate succession).

### When Used

- Decedent died intestate (no will)
- Need court determination of heirs
- Property titled in decedent's name
- More than affidavit of heirship needed

### Title Examination

**Required Documents**:
- [ ] Judgment Declaring Heirship
- [ ] Death certificate
- [ ] Application for Determination of Heirship

**Verify in Judgment**:
1. **All heirs identified**: Names, relationships, shares
2. **Property described**: Should include subject property
3. **Shares determined**: Percentage or fractional interests
4. **Finality**: Judgment is final (appeal period passed)

### Texas Intestate Succession (Tex. Estates Code § 201.001 et seq.)

**Married Decedent with Children (all from marriage)**:
- Separate property: 1/3 to spouse, 2/3 to children
- Community property: All to surviving spouse

**Married Decedent with Children (not all from marriage)**:
- Separate personal property: 1/3 to spouse, 2/3 to children
- Separate real property: Life estate in 1/3 to spouse, remainder to children
- Community property: 1/2 to children (decedent's share)

**Married Decedent, No Children**:
- Separate personal property: All to spouse
- Separate real property: 1/2 to spouse, 1/2 to parents/siblings
- Community property: All to surviving spouse

**Unmarried Decedent**:
- All to children; if none, to parents; if none, to siblings; etc.

### Homestead Considerations

Surviving spouse has **life estate in homestead** regardless of how title passes (Tex. Estates Code § 102.005).

---

## Affidavit of Heirship

### Tex. Estates Code § 203.001

**Non-judicial alternative** to heirship proceeding—recorded affidavit stating heirship facts.

### Requirements for Acceptance

**Standard 8.70**: An affidavit of heirship may be relied upon if:

1. **Disinterested Affiants**: Two witnesses who:
   - Knew decedent and family
   - Are not heirs or beneficiaries
   - Have no interest in the estate

2. **Proper Content**:
   - Decedent's marital history
   - Names of all children (including deceased children's descendants)
   - Statement that decedent died intestate
   - Legal description of property

3. **Recording**:
   - Recorded in county where property located
   - Title companies typically want **5 years** of record before full reliance

### Title Company Requirements

| Time Since Recording | Typical Requirement |
|---------------------|---------------------|
| Less than 2 years | May require heirship proceeding or indemnity |
| 2-5 years | May accept with additional affidavits |
| More than 5 years | Generally acceptable as marketable title evidence |

### Red Flags

- Interested party as affiant
- Missing children or marriages
- Conflicting affidavits of record
- Property outside affidavit's legal description
- Recent recording (may need supplementation)

---

## Small Estate Affidavit

### Tex. Estates Code §§ 205.001-205.007

**Simplified procedure** for small intestate estates.

### Requirements

1. **Intestate**: Decedent died without a will
2. **30 Days**: At least 30 days since death
3. **No Petition Filed**: No administration pending or granted
4. **Value Limit**: Estate value (excluding homestead and exempt property) ≤ **$75,000**
5. **Assets ≥ Debts**: Known estate assets exceed known debts (excluding secured debts)

### Procedure

1. Distributees file sworn affidavit listing:
   - All known assets and debts
   - Names and addresses of heirs
   - Facts of heirship

2. Court approves affidavit (or denies)
3. Certified copy recorded in property records

### Title Examination

**Required Documents**:
- [ ] Court-approved Small Estate Affidavit
- [ ] Order approving affidavit
- [ ] Deed from distributees (if conveying)

**Verify**:
- All distributees signed affidavit
- Property included in affidavit
- Court approval obtained
- 30-day waiting period observed

---

## Transfer on Death Deeds (TODDs)

### Tex. Estates Code §§ 114.001-114.106

**Non-probate transfer** of real property effective at death.

### Key Characteristics

- **Revocable** during grantor's lifetime
- **No present interest** transferred to beneficiary
- **Avoids probate** for covered property
- Effective **September 1, 2015** and later

### Title Examination

**Required Documents**:
- [ ] Recorded Transfer on Death Deed
- [ ] Death certificate of grantor
- [ ] No recorded revocation

**Verify**:
1. **Proper Execution**:
   - Signed by grantor (or agent under POA with express authority)
   - Acknowledged before notary
   - Recorded before grantor's death

2. **No Revocation**:
   - Search for recorded revocation instrument
   - Subsequent TODD revokes prior
   - Subsequent conveyance revokes TODD for that property

3. **Beneficiary**:
   - Named beneficiary survived grantor
   - If multiple beneficiaries, one deceased—their share lapses (unless alternate named)

### Creditor Rights

**Tex. Estates Code § 114.104**: Property transferred by TODD remains subject to:
- Claims against estate
- Allowances to surviving spouse/children
- Medicaid estate recovery

**Title companies may require**: Affidavit that no estate claims pending.

### Common Issues

| Issue | Resolution |
|-------|------------|
| Beneficiary predeceased | Share lapses; grantor's estate owns |
| Multiple TODDs | Last recorded controls |
| TODD + Will conflict | TODD controls (non-probate) |
| Homestead + TODD | Surviving spouse rights may override |

---

## Lady Bird Deeds

### Enhanced Life Estate Deeds

**Not statutory**—common law deed structure granting:
- Life estate to grantor
- Remainder to beneficiary
- **Retained powers**: Grantor can sell, mortgage, revoke without beneficiary consent

### Title Examination

**Structure to verify**:
```
"Grantor conveys to Beneficiary, subject to a life estate reserved
in Grantor, together with the full power and authority in Grantor
to sell, convey, mortgage, lease, or otherwise manage and dispose
of the property during Grantor's lifetime without the joinder or
consent of the remainderman."
```

**After Grantor's Death**:
- [ ] Death certificate
- [ ] No subsequent conveyance by grantor
- [ ] Remainderman deed or affidavit

### vs. Transfer on Death Deed

| Feature | Lady Bird Deed | TODD |
|---------|---------------|------|
| Statutory basis | Common law | Tex. Estates Code Ch. 114 |
| When effective | Immediately (life estate) | At death only |
| Creditor claims | Remainder may be subject | Subject to estate claims |
| Medicaid | Possible avoidance | Subject to recovery |
| Homestead | Life tenant has homestead | N/A until death |

---

## Community Property Survivorship

### Tex. Estates Code §§ 112.001-112.151

**Non-probate transfer** of community property to surviving spouse.

### Agreement Requirements

1. **Written agreement** signed by both spouses
2. **Express survivorship language**: "with right of survivorship"
3. **Recorded** (for real property)

### Title Examination

**Required Documents**:
- [ ] Recorded Community Property Survivorship Agreement
- [ ] Death certificate
- [ ] Affidavit of Surviving Spouse (title company may require)

**Verify**:
- Agreement covers subject property
- Both spouses signed
- Proper survivorship language
- No divorce or separation

### Common Forms

- Separate survivorship agreement
- Language in deed: "to H and W, as community property with right of survivorship"
- Designation in account/title documents

---

## Title Examination Checklist

### For Every Estate/Probate Title

- [ ] **Death certificate**: Verify identity, date of death, domicile
- [ ] **Probate search**: Check county court records for proceedings
- [ ] **Will search**: Obtain copy if exists
- [ ] **Marital history**: Determine community vs. separate property
- [ ] **Homestead**: Identify if property was homestead (surviving spouse rights)
- [ ] **Federal tax lien search**: Estate may have tax liability
- [ ] **Medicaid inquiry**: Potential estate recovery claim

### Document-Specific Checklists

**Muniment of Title**:
- [ ] Certified Order
- [ ] Certified Will
- [ ] Property in Will (specific or residuary)
- [ ] Four-year rule satisfied
- [ ] No necessity for administration found

**Independent Administration**:
- [ ] Letters Testamentary (current)
- [ ] Will grants independent authority
- [ ] Will grants sale power
- [ ] Executor properly signed deed
- [ ] No co-executor issues

**Dependent Administration**:
- [ ] Letters of Administration
- [ ] Court order authorizing sale
- [ ] Sale at or above appraised value
- [ ] Confirmation order (if required)
- [ ] Proper deed execution

**Heirship/Affidavit**:
- [ ] All heirs identified
- [ ] Proper shares calculated
- [ ] Recording requirements met
- [ ] Time on record (for affidavit)
- [ ] No conflicting instruments

**TODD**:
- [ ] Recorded before death
- [ ] No revocation of record
- [ ] Beneficiary survived
- [ ] Proper execution/acknowledgment

---

## Common Title Defects

| Defect | Cure |
|--------|------|
| Will not probated within 4 years | Heirship proceeding or affidavit |
| Missing heir in heirship | Supplemental proceeding or deed from heir |
| Executor sold without authority | Ratification by beneficiaries or court |
| Affidavit by interested party | New affidavit by disinterested parties |
| TODD not recorded before death | Probate required |
| No survivorship agreement | Community property passes by will/intestacy |

---

## Reference: Texas Estates Code Key Sections

| Topic | Code Section |
|-------|--------------|
| Intestate succession | §§ 201.001-201.152 |
| Surviving spouse homestead | § 102.005 |
| Heirship proceedings | §§ 202.001-202.257 |
| Affidavit of heirship | § 203.001 |
| Small estate affidavit | §§ 205.001-205.007 |
| Probate of wills | §§ 256.001-258.153 |
| Muniment of title | §§ 257.001-257.153 |
| Independent administration | §§ 401.001-401.006 |
| Dependent administration | §§ 351.001 et seq. |
| Community property survivorship | §§ 112.001-112.151 |
| Transfer on death deeds | §§ 114.001-114.106 |