Probate Terms
Navigating Texas probate law requires familiarity with specific terminology that governs estate administration from filing the initial application through final distribution of assets. These 25 definitions represent the fundamental concepts that attorneys, personal representatives, and beneficiaries encounter in virtually every probate proceeding. Understanding these terms provides the foundation necessary to comprehend court filings, communicate effectively with legal counsel, and fulfill the statutory requirements that govern the orderly transfer of a decedent’s property to rightful heirs and devisees.
1. Administrator; Independent Administrator
An administrator is a personal representative appointed by the court, typically when the decedent died intestate or the named executor is unable or unwilling to serve. An independent administrator is included in the definition of a personal representative. If a decedent’s will does not name an executor, all distributees may agree on a qualified person to serve as independent administrator. An independent administrator has the same power of sale over estate property as an independent executor.
2. Bond
A “bond” is a legal requirement typically imposed on a person appointed to serve as a personal representative, unless exceptions apply. The bond is generally required before letters testamentary or of administration can be issued. It must be in an amount deemed sufficient by the judge to protect the estate and its creditors. The bond is conditioned on the representative administering the estate faithfully and not wasting or misapplying the assets.
3. Claims
“Claims” is a comprehensive term encompassing various liabilities against the decedent or debts owed to the estate. Liabilities surviving the decedent’s death are included, such as taxes, whether they arise from contract, tort, or otherwise. Specifically mentioned components of claims include funeral expenses, the expense of a tombstone, and costs associated with administration. The term also covers estate and inheritance taxes, as well as debts due to the estate.
4. Devise
Used as a noun, “devise” includes a testamentary disposition of real property, personal property, or both. When used as a verb, the term means to dispose of real property, personal property, or both, by means of a will. This term is closely related to “legacy,” which also includes a gift or devise of real or personal property made through a will. The act of devising property is the manner in which a testator transfers their assets upon death.
5. Devisee
A “devisee” is a person entitled to receive property from a decedent through a will. This term is explicitly inclusive of a legatee. Because the act of devising covers both real property and personal property, a devisee is the proper term for someone inheriting either type of asset under a testamentary disposition.
6. Distributee
A “distributee” is a person entitled to receive a portion of a decedent’s estate. This right to a share of the estate stems from either a lawful will left by the decedent or the applicable statutes governing descent and distribution. The distributee is the ultimate recipient of estate property, distinguishing them from the personal representative who manages the property.
7. Estate
The term “estate” means a decedent’s property. This property encompasses the assets as they originally existed and as they might subsequently change form due to factors such as sale or reinvestment. The estate is augmented by additions and accretions to the property, including assets distributed from a trust that terminates upon the decedent’s death. Conversely, the estate is diminished by any reductions in or distributions made from the property.
8. Executor; Independent Executor
An executor is a personal representative named in a decedent’s will, whose duty is to carry out the will’s terms. An independent executor is granted special powers, as their status means they are generally not subject to the control of the courts in probate matters concerning the settlement of estates. Judicial control over an independent executor is limited to cases expressly provided by law. If named in the will, the executor is usually the first person entitled to letters testamentary or of administration.
9. Heir
An “heir” is a person designated to receive a part of the estate of a decedent who dies intestate. Intestate means the decedent died without a valid will governing the distribution of their property. The heir’s entitlement arises specifically under the statutes of descent and distribution. This definition explicitly includes the decedent’s surviving spouse.
10. Incapacitated Person
A person is defined as “incapacitated” if they are a minor, or if they are an adult who is substantially unable to manage their personal or financial affairs due to a physical or mental condition. This inability may manifest as being substantially unable to provide for necessities like food, clothing, or shelter. For guardianship purposes, inability also includes the substantial inability to make personal decisions regarding voting, residence, marriage, or operating a motor vehicle.
11. Interested Person; Person Interested
This broad term refers to an individual who has a stake in the administration of an estate. It specifically includes any heir, devisee, spouse, or creditor. Additionally, the term covers anyone having a property right in or a claim against the estate that is currently being administered. If the matter relates to an incapacitated person, the term also includes anyone interested in that person’s welfare, such as a minor.
12. Inventory, Appraisement, and List of Claims (IACL)
This is a foundational document that the personal representative must file within 90 days of qualification, providing a detailed description and valuation of the estate assets. The “List of Claims” section must include specific details for each claim due or owing to the estate, such as the type of obligation, the date incurred and due, and whether the claim is separate or community property. If the representative later discovers additional property or claims, they must promptly file a verified, detailed supplemental inventory or list of claims.
13. Legacy; Legatee
A “legacy” is generally considered a gift or devise of real or personal property made through a decedent’s will. A “legatee” is the person who is entitled to receive that specific legacy under the provisions of the will. This term is synonymous with “devisee,” which includes a legatee.
14. Letters Testamentary and Letters of Administration
These are the formal documents issued by the court that grant official authority to a personal representative. Before Letters Testamentary are granted, the court must be satisfied that the required proof for the will’s probate has been made, and that the person is named as the executor in the will. Before Letters of Administration are granted, the applicant must prove that a necessity for an administration of the estate exists. Once granted, these letters provide sufficient evidence of the representative’s authority to commence collection and possession of estate property.
15. Minor
A “minor” is legally defined as a person younger than 18 years of age. To fully qualify as a minor under this code, the person must also meet two additional criteria. First, the individual must have never been married. Second, the individual must not have had the disabilities of minority removed for general purposes.
16. Necessity for Administration
This is a required finding the court must make before granting letters of administration. If an application for administration is filed, but the court finds that no necessity exists, the court must state this finding in the order refusing the letters. The administration of an estate is officially considered settled and closed only when all known debts have been paid (to the extent permitted by assets) and the court determines that no further need for administration exists.
17. Net Estate
The “net estate” is defined as a decedent’s property after certain assets and liabilities have been excluded. It explicitly excludes all homestead rights and exempt property from the calculation. Additionally, the net estate does not include the family allowance or any enforceable claims against the decedent’s estate. This calculation is important for determining the portion of the estate subject to distribution among heirs or devisees after liabilities are settled.
18. Personal Property
“Personal property” includes diverse types of assets that are not fixed to land. Specifically mentioned in the definition are tangible items such as goods and intangible assets such as money. The term also covers a chose in action, which is the right to sue for a debt, an evidence of debt (like a promissory note), and a real chattel.
19. Probate Matter; Probate Proceedings
The terms “probate matter,” “probate proceedings,” “proceeding in probate,” and “proceedings for probate” are interchangeable. These terms include any matter or proceeding related to a decedent’s estate. The scope encompasses a broad range of actions, such as the probate of a will, issuance of letters testamentary or of administration, and actions concerning claims against the estate. They also include matters related to settling a personal representative’s account, partitioning an estate, or will construction suits.
20. Probate of Will as Muniment of Title
This is a streamlined process where a will is admitted to probate, but a formal estate administration is avoided. The court may grant this if it is satisfied that the will should be probated and that the testator’s estate does not owe any unpaid debts, excluding debts secured by a real estate lien. Alternatively, the court may allow this process if it determines there is simply no necessity for an administration. The resulting order functions to transfer the title of the property as if the assets were legally vested in the distributee’s name.
21. Real Property
“Real property” encompasses estates and various interests in land. This definition includes interests that are corporeal (physical land or structures) and incorporeal (rights in land, like easements or mineral rights). It applies to both legal and equitable interests. It is important to note that the statutory definition explicitly excludes a real chattel.
22. Representative; Personal Representative
“Representative” and “personal representative” are synonymous terms used throughout the Estates Code. These terms include an executor, as well as an independent executor. They also encompass various types of administrators, such as an administrator, an independent administrator, or a temporary administrator. Finally, this definition extends to cover any successor to one of the aforementioned executors or administrators.
23. Statutory Probate Court
A “statutory probate court” is a specialized court created by statute and formally designated as such under Chapter 25, Government Code. In counties containing a statutory probate court, that court has exclusive jurisdiction over all probate proceedings, regardless of whether the matters are contested or uncontested. This type of court is also vested with jurisdiction over matters related to trusts and powers of attorney in certain circumstances.
24. Temporary Administrator (TA)
If the interest of a decedent’s estate requires the immediate appointment of a representative, the court may appoint a TA. The order appointing a TA must specify the period of appointment, which cannot exceed 180 days unless the court makes the appointment permanent. A TA can only exercise the rights and powers specifically expressed in the court’s appointment order or subsequent orders, and any unauthorized act performed by a TA is void.
25. Will
A “will” is a written instrument created by the testator that directs the disposition of their property after death. The term includes a codicil, which is an amendment to a will. A will may be testamentary in nature even if it merely serves to appoint an executor or guardian. Furthermore, a document that only directs how property may not be disposed of, or one that solely revokes a previous will, is still considered a “will.
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Disclaimer
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
