Dying Without a Will in Texas

Dying without a will in Texas is also called “intestate.” When a person dies intestate, Texas laws determine who will receive the individual’s property. For property to transfer after death, it usually must go through probate.

Probate is the process of collecting and transferring title of an individual’s assets following his death. This may also include settling debts owed by the estate. For example, probate can be necessary to transfer ownership of a home from the deceased to her heirs. Without a properly drafted will, this process becomes more difficult, time consuming, and costly.

Probate options in Texas when there is no Will include:

(1) Small Estate Affidavit

A small estate affidavit (SEA) can be used when the total assets of the estate equal $50,000 or less, excluding the homestead and exempt property. To use a small estate affidavit, the total of the assets of the estate must exceed the total known liabilities. The only real property that can be transferred by an SEA is homestead property owned by the decedent that will be inherited by a surviving spouse or unmarried child who was living on the homestead. Some financial institutions are reluctant to accept an SEA, so it is best to check with the financial institution before beginning this process.

(2) Determination of Heirship in Texas

The determination of heirship is the process by which the court determines who inherits the deceased’s estate based on Texas intestacy laws. The process requires the appointment of an attorney ad litem, who will investigate the family history and represent unknown heirs. In an heirship proceeding, two independent witnesses must verify the deceased’s family history. While this proceeding determines who are the heirs of the estate, the process, alone, may be insufficient to transfer title to property. For instance, financial institutions often require “letters of administration” to transfer funds. Letters of administration can be obtained through a court created administration.

(3) Court Created Administration

If the estate requires administration, the court may create an independent administration if the decedent died in the last four years and all heirs agree on who will serve as independent administrator. Once created, the independent administration functions in much the same way as if an independent executor was appointed in a will.

If the heirs cannot agree on an independent administrator or a beneficiary is a minor, the court will only appoint a dependent administrator. The court oversees all aspects of a dependent administration. For example, bills cannot be paid without court approval and the administrator is required to file regular accountings with the court.

(4) Affidavit of Heirship

An affidavit of heirship can be used to transfer title to real property when there are no debts of the estate and no administration is necessary. The affidavit must be signed by two disinterested witness who are familiar with the family history.

If you have questions about probate without a will or Texas intestacy laws, contact me.

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