Most lawyers understand, at least to some degree, the concepts related to filing a will for probate and having the court appoint an executor or administrator. However, few lawyers understand the process and effects of probating a will as a “muniment of title.” When a will is filed for probate as a muniment of title, the applicant is asking the court to recognize the will as valid, admit the will to probate, and not appoint an executor or administrator. This obviously differs drastically from a traditional method of probate where the executor or administrator is appointed by the court to identify the assets, pay the debts, and distribute the remaining assets. In a muniment of title case, once the court signs an order admitting the will to probate, the county clerk records both the will and the order admitting the will to probate in the deed records of the county. The recording of these documents effectively links the chain of title between the decedent and those listed under the will as beneficiaries of the estate. This “transfer” of title in property is accomplished without the appointment of a personal representative to effectuate the transfer, but rather is simply accomplished as a result of the court’s order admitting the will to probate. While the muniment of title method sounds rather easy and less costly than a traditional probate, a couple of factors must be considered. First, in order to file a will as a muniment of title, the decedent must not have owed any debts at the time of his death, or his debts must have been satisfied prior to the filing of the will. In a vast number of cases, this requirement forecloses the option of using the muniment of title method. Second, a practical problem arises from the probate of a will as a muniment of title. The entire concept of a muniment of title is a concept arising under Texas law and is not recognized, at least in name, by other states. As a result, lawyers in other states do not understand the concept or the effect. This can become a problem with banks, brokerage firms, transfer agents, and the like who are located out of state and are represented by legal departments consisting of non-Texas lawyers. In some instances, these firms will outright refuse to accept a muniment of title as an effective method of transferring accounts, shares of stock, etc., and will require the appointment of an executor or administrator. The unwary lawyer who discovers this only after having finished the muniment of title process finds himself spending inordinate amounts of time and resources to address this issue. The most effective use of a muniment of title is in estates where the sole or primary assets consist of real estate located in Texas. In those instances, title companies recognize the effect of the muniment of title, and they will simply require that the will and order admitting the will be recorded in each county in which the decedent owned real estate. In those cases, the transfer of the decedent’s property and the resulting sale to outside parties is accomplished very easily and cost efficiently for the client. Like a traditional method of probate, a four-year statute of limitations from the date of the decedent’s death applies to the filing of a will for probate as a muniment of title. However, a very important exception exists. If an applicant is not found to have been in default for failing to probate a will in less than four years, then the court can admit the will to probate as a muniment of title. This is the only method of having a will admitted to probate more than four years after the decedent’s death, which leaves the muniment of title as the only method for probate in some instances. The various courts around the state differ on the level of proof required to find that the applicant was not in default for not having brought the will within the limitations period. However, all of the courts are consistent in that the applicant for probate outside of four years must serve notice on all of the heirs at law prior to the will be admitted to probate as a muniment of title. In certain cases, the muniment of title is the most cost-effective and quickest method of probating a will. In other cases, it is nothing but a trap creating problems for the unwary lawyer. Before filing a will for probate, make sure that you understand the difference.HN

Don D. Ford III is a partner at Ford & Mathiason LLP, a firm with offices in Dallas and Houston.