There are only two children and the oldest is the executor. The will states to share and share alike equally. There are no debts, the estate is right at $200,000 and everything including car, house and furnishings will need to be sold and proceeds divided. Is probate necessary or can the will be taken to an attorney for title of house and vehicle to be transferred. We are thinking about an auction to sell everything. The two children are very close and there is no argument between them on division.
Formal probate is your best solution, and the process is likely easier than you might imagine. Given your facts, an actual administration of the estate might not even be necessary. In many circumstances like you describe, it is perfectly appropriate for the Will to be offered and admitted to probate as a "muniment of title." In such a proceeding, the Will is admitted and made effective, but no executor is appointed. The Order appointing the Will, and the Will itself, serve to transfer title to the beneficiaries thereunder. This method is not only effective, but highly efficient, as the attorney involvement and required fees are relatively low.
Unfortunately, simply taking the Will to an attorney isn't likely to yield anything more than an educational outline of the procedure I've mentioned. On occasion, specific affidavits can be used, but the effectiveness of their use really depends on the third-party (like a title company) that you're trying to convince of your ownership interest. Muniments of title, as a general rule, are probably preferred more than the alternatives. Transferring title following death is precisely what probate is designed to accomplish, and while there are a handful of ways to avoid it, your case doesn't sound like one that can be handled without at least a little court involvement.
This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship.
Estate Planning Attorney
Just because the two children are very close and you can make an agreement to be fair with each other, the probate process cannot be avoided if there was a will and the real estate was in the deceased's name.
There is no way to transfer the house out of the deceased's name without probate. It very well might be that once probate is opened, the children decide to auction the house with the estate to divide the proceeds between the kids after the expenses of the estate are paid.
Lawyers are not out there just to take your money. A qualified probate attorney will earn his or her fee by assisting you with all the options so that it is done The Right Way.
You say that the two children "are very close." One of our goals as probate attorneys is to do all we can so that you stay that way.
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Estate Planning Attorney
Hello. I am sorry for your loss. You should speak to a probate attorney in your area on this matter. One possibility for you to consider is called a "Muniment of Title" (“MT”) proceeding which is one of several ways to distribute an estate without establishing a formal administration. It is the only way to have a will admitted to probate without opening an independent or dependent administration. The question you (and your lawyer) will have to answer is whether or not a formal administration is available or is needed. If the will is being offered for probate more than 4 years after the death of the testator, then MT is the only way that it may be admitted to probate, as no administration may be established more than 4 years after the testator's death. Where there are no debts, this may be the most cost efficient and simplest way to probate the will and distribute the estate. This is because once the order admitting the will to probate is signed, that order, along with the will, serves as the functional equivalent of transferring title of the estate's assets to the devisees, giving them the right to deal with the property as if record title were vested in their names. Also, probating the will as a MT eliminates the need for an inventory or any other formal responsibilities past filing an affidavit regarding fulfillment of the terms of the will. The only drawback to using this procedure is that dealing with banks, brokerage houses and corporations which hold accounts or stock certificates belonging to the estate can be complicated by these institutions' unfamiliarity with the procedure. The procedure is not too involved: 1. File an Application with the probate clerk; 2. Serve Notice on all interested parties by posting; 3. Set matter for Court hearing (after Application has been on file for 10 days); hearing may involve witnesses depending upon the will being executed with all required formalities; 4. Once the will is admitted to probate, the applicant has only one last responsibility to the Court. Within 180 days of the will being admitted to probate, the applicant must file a sworn affidavit setting out the terms of the will which have been fulfilled and which have not. There is no requirement that the applicant file an inventory of the estate, nor is there any need for accountability to the Court regarding changes in the assets of the estate. Many attorneys claim that filing an inventory can serve as insurance against potential problems with creditors' claims which may arise in the future, but whether or not to file an inventory still remains the applicant's choice. I hope this helps you both. Stay warm and good luck.