Drake Law, PLLC

This collection of resources are designed to assist attorneys with basic scenarios in probate court. Probate is one area of law where a person almost always needs a lawyer and these articles are not written for use by non-attorneys except for educational purposes.

  • 14 Jul 2017 10:00 AM | Lindsey Drake (Administrator)

    One of my favorite tools for probating a will is a muniment of title (MOT) found in chapter 257 of the Texas Estates Code. This simplified procedure results in the will being admitted to probate but no personal representative is appointed for the estate and no administration is opened.

    A MOT is ideal for an estate that:

    1. has a valid will
    2. has no debt when the application is filed
    3. has clearly identified bequests and beneficiaries
    4. has no need for an executor to represent the estate; and where
    5. Decedent did not apply for and receive Medicaid (NOT Medicare) benefits on or after March 1, 2005; and no charity or government agency will receive a bequest.
    MOT is your only option to probate a will if four years have passed since the date of Decedent's death ... but that needs its own article.

    The MOT process begins just like an independent administration, with the application (section 257.051), the cover sheet, the death certificate, and the original will. In the application, you have the option of asking the court to waive the affidavit requirement of section 257.103. If the beneficiaries are in the courtroom during the hearing, the judge can waive the requirement. Otherwise, your applicant will need to file the affidavit within 6 months of the order.

    At the hearing, you will bring the proof of death testimony and the order, which track the application just as they do in an independent administration. If the will is valid but has issues with signatures, self-proving affidavits, etc., the method of proving up the will is also the same. The ONLY difference between a muniment and an independent administration up until the signing of the order is that a muniment asks that no administration be opened.

    If the judge admits the will to probate as an MOT, your work as a lawyer is almost done. Your final task (other than the affidavit of fulfillment) is to assist the client to make all the property transfers including car titles, real estate, and financial products. On occasion, a bank will refuse to release funds under a MOT order, but usually a gentle yet firm letter or phone call is sufficient to reach the legal department.

    When not to use:
    1. If one of the conditions above are not met;
    2. If an estate representative is needed for instance to sell property before distributions or file a lawsuit;
    3. When payments are received written to Estate of ...;
    4. When you anticipate conflict among beneficiaries over distributions.

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© Lindsey Drake 2016

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