There are instances when a full probate is not needed, but there is real estate or other property that needs clear title. This is where muniment of title comes in. It can provide a means for documenting the change of ownership. The term “muniment” means document or record. This muniment provides evidence of the new owners title to the property, subject only to payment of the decedent’s debts.
The primary requirements for probating a will are that (1) there is a valid will and (2) there are no unpaid debts owed by the estate. With respect to the no unpaid debts element, this does not include debt secured by a lien on the decedent’s real estate.
In most cases, the muniment of title will be pursued after a family settlement agreement that provides for the payment of all debts.
There are cases where muniment of title is not advisable.
This includes cases where there are third parties who may not accept the muniment of title as proof of the property transfer. These cases usually have real estate located in a state other than Texas where the state does not have a muniment of title option. It may also include banks or other financial institutions that require letters testamentary before changing ownership of the decedent’s accounts.
Muniment of title may also not be advisable if it is likely that other creditors will file claims. These later-filed claims may require a full probate.
The process for probating a will as muniment of title is similar to the normal process for probating a will. The process starts when the named executor or an interested party files an application with the probate court.
The probate clerk will then publish its citation and notice of the will as it does with probating a will.
Any other interested party can file an answer in response to the probate application, file a motion to abate (where probate is proceeding in another court), a motion in limine (to contest the applicant’s suitability), or a motion to transfer venue (to have the case transferred to a proper or more convenient court).
The regular probate process is then followed, which may include the appointment of an attorney ad litem and if the application is contested, then discovery and one or more court hearings.
Unlike the regular probate process, a personal representative is not appointed and an inventory is not have filed. The probate process generally ends when the applicant files an affidavit stating that the terms of the will have been fulfilled. This affidavit has to be filed within 180 days of the will being filed.
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