Probating a Will as a Muniment of Title

Probate a Will as a Muniment

A muniment, also called a muniment of title, is a document indicating title or ownership of an asset. In modern practice, a muniment serves to transfer title of real estate when there is no need for a formal administration of an estate.

When Should It Be Used?

Muniments are most commonly used when the only asset in the estate is real property. A will admitted to probate as a muniment of title acts as a link in the “chain” of title, thereby transferring real estate to the beneficiaries in the will. To qualify for a muniment proceeding, there must be no need to have a formal estate administration. Muniments are not an option when:

Debt exists at the time of death. If debts exist at the time of a decedent’s death that are not secured by real property, a muniment isn’t available. However, the beneficiaries can choose to pay off those debts themselves and then proceed with a muniment.

Other situations when a muniment is not appropriate:

  1. Need for court-approved inventory to reflect a stepped-up basis of devised property in a taxable estate,
  2. Need for legal action to collect estate assets,
  3. Stock transfer agents that require a personal representative of the estate,
  4. Requirement by a title company of letters testamentary to close on a real estate transaction,
  5. Insurance company requiring a personal representative of an estate to receive insurance proceeds,
  6. Need to pursue personal injury litigation for injuries resulting in the decedent’s death, or
  7. Need to defend the decedent’s estate from litigation.

What Is Included in the Order?

The Texas Estates Code sets out what must be in an application to probate a will as a muniment of title. Tex. Est. Code §257.102. In addition to the information included in a standard order probating a will, a few additional specifics should be included in an order probating a will as a muniment of title.

Facility of Payment Language

An order probating a will as a muniment of title should quote the statutory language that indicates the effect of the order is to transfer property to those named in the instrument. For example:

“This order constitutes sufficient legal authority for each person who owes money to the testator's estate, has custody of property, acts as registrar or transfer agent of any evidence of interest, indebtedness, property, or right belonging to the estate, or purchases from or otherwise deals with the estate, to pay or transfer without administration the applicable asset without liability to a person described in the will as entitled to receive the asset.” Tex. Est. Code § 257.102.

Muniments Over Four Years

A will generally must be probated within four years in Texas; however, some exceptions exist under the law. When attempting to probate a will as a muniment after four years have elapsed, all potential intestate heirs (who are not applicants) must be served or file a waiver with the muniment application as per Tex. Est. Code § 51.053. A will being offered for probate as a muniment of title after four years may be accepted where the applicant has a valid excuse for the failure to probate timely. Some examples of excuses that Texas courts have accepted include the below:

  1. Belief that Further Action is Unnecessary – A surviving spouse had control of the deceased spouse’s unprobated will and was advised by counsel that probate was unnecessary. Upon learning the will must in fact be probated, a surviving spouse that acts diligently to probate the will may have the will admitted to probate.

Examples include: Estate of Hammack, 2016 Tex. App. LEXIS 3801 (Tex. App. Tyler, April 13, 2016, no pet.); Estate of Ozee, 2012 Tex. App. LEXIS 9690 (Tex. App. Texarkana 2012, no pet.); Estate of Allen, 2013 Tex. App. LEXIS 5675 (Tex. App. Eastland 2013, no pet.).

  1. No Access to Will (Child) - The surviving spouse has control of the deceased spouse’s unprobated will, and such fact is not discovered by the child until after the surviving spouse’s death. The child of the testator is not in default because either (a) he had no knowledge of the will or (b) the will was not in his control to probate.
  2. Bona Fide Purchaser - A purchaser under a contract of sale, acting in good faith and without prior notice of the unprobated will may offer the will for probate as a muniment. Tex. Est. Code § 256.003(c).


If you think that a will could be probated as a muniment of title, be sure to talk to an experienced probate attorney before taking any steps.

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