Probate After a Muniment of Title

Muniment of title is an alternative to the probate process in Texas. It is cost-efficient.  It is fast–relatively speaking.

A Will is required. Instead of appointing you as the executor, the probate court enters an order distributing property according to the Will. And walla!

But what if the story does not end there? What if more than two years go by and you find out that the decedent had another bank account that you did not know about? The bank says that you need letters testamentary, which you did not get as you opted for the muniment process…. Or what if you find out that someone needs to have legal authority to sue a third party on behalf of the estate?

What do you do? Are you out of luck? Can you just file a regular probate after the muniment of title? The court considers this issue in In re Jacky, 506 S.W.3d 550 (Tex. App.–Houston [1st Dist.] 2016).

Facts & Procedural History

This dispute involves a Will that was admitted to probate. Fast forward three years. A family member filed an application to be appointed as the executor.

The probate court issued issued letters testamentary and appointed the applicant as the independent executor of the estate.

Other family members filed a motion to set aside this order.  The motion was based on the argument that the probate court did not have the power to appoint an independent executor after more than two years of the muniment. This court case is an appeal of the probate court’s order.

About the Muniment of Title

The muniment of title process can be an excellent way to handling some estates. It is faster and cheaper. It can also help sidestep some family complications.

The muniment process is only used if there are no unpaid debts (exclusive of any debt secured by liens on real estate) and there is no need for a full probate (such as a legitimate probate dispute, such as a will contest).

After the court grants the muniment, the applicant has 180 days to file a sworn affidavit with the court clerk.  The sworn affidavit just confirms that the terms of the Will have been fulfilled. This means that the applicant has 180 days to see to it that the property is distributed according to the terms of the Will.

Importantly, with the muniment process, the probate court does not appoint an executor or authorize letters testamentary.  That is the issue in this case. No executor was originally appointed.

The Probate Court’s Jurisdiction

The courts have very specific authority when it comes to probate matters. Someone has to invoke these powers by filing an application with the probate court. The court is then authorized to consider just about ever matter related to the estate.

This power is not indefinite. The court’s power has an end to it. With the muniment process, the court’s power generally ends when the certificate of compliance is entered and the court drops the case from its docket. In this case, that date was in 2012. It was not in 2015 when the court entered an order appointing an independent executor.

The Bill of Review

But what if it turns out that the estate needed to be administered after 2012? The answer is that the party seeking to have the probate re-opened has to first get the court to set aside its muniment order.

That is what the argument was in this case. The family members argued that the muniment order was a final judgment, which it clearly is. This triggers the requirement to either file an appeal or file a bill of review to set aside the order.

Okay, so no problem, file an appeal or bill of review, right? Well, it is usually not that easy. The time period for filing an appeal had long passed. The time period for filing a bill of review had even passed. That time period for a bill of review is just two years from the date of the final judgment, usually. Two years is not a long time when you are talking about a probate case.

The appeals court had little difficulty in reversing the probate court’s order granting letters testamentary in this case. The probate court was simply too late.

This conclusion is based on the policy of finality that applies when it comes to probate cases. Texas law and the courts generally uphold the policy that death should be final. Probate cases and even probate disputes should not be allowed to continue indefinitely.

Takeaway

The muniment is an alternative to probate in Texas. While it is often an excellent alternative, it does not always work. This case helps explain one of the limitations of the muniment process.

If there is any chance that a significant asset may show up after two years, one might consider doing a full probate instead of a muniment. The full probate case can be held open for years–decades even. This feature can be critical if significant assets are discovered after the two year period or if there is a need to administer the estate after this period.