When a loved one dies without a will, you may be unsure of what to do and have lots of questions. Where do you even start? Who gets the assets in the estate? Who is the executor of an estate in Texas with no will? How do you settle an estate without a will in Texas? Today, we will explore the answers to these questions and more.
Determine If You Need to Probate the Estate
Not all estates need to go through the probate process. If the decedent only owned non-probate assets or community property at the time of death, then settling the estate may be quite simple. These types of assets automatically transfer to the named beneficiary or co-owner at death, so having a will is not necessary.
Non-probate assets are assets where the formation documents include the designation of a beneficiary. These include assets owned by a trust and jointly titled assets.
Life insurance policies, retirement accounts, property owned as “joint tenants with rights of survivorship,” and “Transfer on Death” (TOD) accounts are all examples of non-probate property.
Community property is any earnings or property acquired during a marriage. This automatically passes to the surviving spouse unless either spouse has children from previous relationships. In that case, things are a bit more complicated.
How to Settle an Estate Without a Will
There are several different ways to settle an estate without a will in Texas.
Affidavit of Heirship
An Affidavit of Heirship is a sworn statement that identifies the decedent’s heirs and their share of the estate. It can be used to transfer the decedent’s property into the name of his or her heirs.
This is a quick, simple, and inexpensive way to retitle property and does not involve the probate court at all. You simply file the affidavit with the county clerk of the counties where the decedent owned property or resided at the time of death.
The affidavit must be notarized and signed by two disinterested people (i.e., persons that have no financial interest in the decedent’s estate).
An Affidavit of Heirship can only be used if:
- The decedent died without a will, and
- The decedent’s only asset at death was real estate solely titled in his or her name.
The problem with an Affidavit of Heirship is that it presumes the heirs can rightfully take the title of the property. However, since the probate court does not make this determination about the heir’s status, creditors or other heirs can challenge the Affidavit of Heirship. Some banks and title companies may not recognize an Affidavit of Heirship as a valid transfer of title.
Small Estate Affidavit
To probate in Texas without a will, consider a small estate affidavit. This probate proceeding requires very little involvement from the probate court. You can file for a small estate affidavit only if:
- The estate does not include real estate;
- The decedent doesn’t have a will; and
- The only known financial assets equal less than $75,000.
If the estate doesn’t meet the above requirements, you must file for a traditional probate proceeding.
When the decedent doesn’t leave a will and a small estate affidavit can’t be used, an Independent Administration must take place. Part of the process is determining who the heirs of the estate are.
This is a formal proceeding called a Determination of Heirship where the court decides who’s entitled to inherit the decedent’s assets and what share of the property they’re entitled to. Texas laws of intestate succession are used to determine each heir’s respective share of the estate.
As part of the Determination of Heirship proceeding, the court will appoint an attorney to represent all unknown heirs. In addition to that, two disinterested witnesses must testify that they knew the decedent well and all family history has been accurately disclosed.
Independent administration can be lengthy, but sometimes it’s the only option.
A Dependent Administration is even more lengthy and costly than an Independent Administration. The probate court closely monitors this type of proceeding.
For example, the estate administrator must attend an in-person hearing to receive permission from the probate judge every time they want to take action on behalf of the estate. This includes making distributions to the heirs, paying estate expenses, or selling real estate or other assets.
Dependent Administration has the same requirements as an independent administration (including Determination of Heirship) and then some. It’s typically used when there is no valid will, and the heirs cannot agree on who should administer the estate.
Hire an Experienced Probate Attorney
If you’re wondering how to probate an estate without a will in Texas, consult with our Texas probate attorney. Lead attorney Kyle Robbins graduated at the top of his class from one of the best law schools in the nation.
A natural problem-solver, he can evaluate your circumstances and advise you on the best course of action. Contact Robbins Estate Law for a free consultation.