The Common Law

I have asked Joe Marrs, an attorney with a specialty in wills and probate issues, to guest-write today's column. – Luke Ellis

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Wills: What Will You Do? – Part 1

A relative passed away recently and the duty has fallen to me to wind up her affairs. She left a will. Where do I start? Can I do this without a lawyer?

Coping with a death in the family is hard enough; naturally, the first step is to see to your own or your loved ones' grief, and only then worry about the "stuff." After emotions have subsided, however, it is wise to consider transferring your relative's property to those who are entitled to it in a fashion that will minimize the danger of legal problems in the future. Don't wait too long – things will generally be much simpler if you act within months, not years.

The second step is to determine if the deceased left a will. If so, it must be filed with the proper county court, usually that of the county in which the deceased was domiciled when she died. Even if you think that there is no need to probate the will, the law requires that it at least be filed. However, filing the will does not necessarily mean you will have to go through all the formalities of probate; it merely makes the decedent's will part of the county's records.

The third step is to determine what options the law offers you. One of the "shortcuts" Texas law offers is to apply to probate the will as a "muniment" (meaning literally, "defense") of title only, which, if there are no debts other than those secured by a lien on real estate (e.g., a mortgage), allows the distributees to simply present the will, along with the order admitting it to probate, as proof of the transfer of title of all the decedent's property to the distributees named in the will. In some instances, the probate court will allow you to proceed without an attorney when probating a will as a muniment of title, but be prepared to spend time finding the correct forms and including the signatures of all the distributees under the will on the application. You can find forms to apply to "prove up" a will as a muniment of title in the library on the fourth floor of the Travis County Courthouse, but you may want to check with the court first to see if it will allow you to proceed without a lawyer. (The phone number of the Travis County Probate Judge's law clerk is 854-9283, but don't ask for more specific legal advice: He is not permitted to give it.)

Finally, even if the deceased's estate meets the conditions for probate as a muniment of title, it is always safest to seek the advice of an attorney before proceeding.