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What Is Probate & Independent Administration

By Thomas Rose | Mon, 3 Nov 2008

What Is Probate?

By the 13th century the jurisdiction to probate wills was recognized in ecclesiastical courts.  There was an early distinction between testaments (which disposed of personal property) and wills (which disposed of real property).  During the reign of England’s Henry VIII, the Statute of Wills was enacted, and it emphasized the foregoing distinction.  The Statute of Wills ended the jurisdiction of ecclesiastical courts over wills, a will became effective as a deed to real property without any judicial involvement, but formal probate proceedings were still required for testaments.  The distinction between wills and testaments continued in England until 1857. However, in the United States the differences between wills and testaments existed for a very short period of time, and then the distinction was terminated.

Therefore it is generally true today that a will does not take effect until it is admitted to probate in some type of judicial proceeding.  However, modern usage usually defines “probate” as both the judicial and non-judicial activities relating to winding up a decedent’s affairs.

Today, the probate or administration of a decedent’s estate is an essential and very important process.  It clears title to real estate.  It settles legitimate debts (and it may wipe out others).  It establishes a new income tax basis for the property in the estate as well as for the community property interest of any surviving spouse.  And it permits the distribution with clear title (ownership) of both real property and personal property to the persons entitled to receive property under the terms of the will.

What Is Independent Administration?

Independent administration is the management of an estate without judicial supervision.

Some historical background: Independent administration in Texas has its origins in Spanish civil law (as does Texas’ community property law and our homestead exemption), arising out of the Spanish extrajudicial procedures to administer decedent’s estates.  This practice began in Texas in 1843 when the Republic of Texas’ Seventh Congress enacted a statute which permitted people to designate in a  will that the probate (or the “proof of a will” or the “proving of a will”) of the will would be the only action of the probate court in the administration of the estate.

Today, an independent administration of an estate may be established by a will, or by the specific order of a probate court (authorized under applicable Texas law, generally requiring the written consent of all beneficiaries or heirs).

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