Dying without a will in Texas is also called “intestate.” When a person dies intestate, Texas laws determine who receives the individual’s property. For property to transfer after death, it usually must go through probate.
Probate is the process of collecting and transferring assets following his death. This may also include settling debts of 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) Texas Small Estate Affidavit
A small estate affidavit (SEA) can be used when the total assets of the estate equal $75,000 or less, excluding the homestead and exempt property. The total of the assets of the estate must exceed total known liabilities. The only real property that can be transferred by a small estate affidavit is homestead property that will be inherited by a surviving spouse or unmarried child 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
A determination of heirship is the process by which the court determines who inherits an estate based on Texas law. The process requires the appointment of an attorney ad litem, who investigates the family history and represents unknown and incapacitated heirs. In an heirship proceeding, two witnesses must verify family history. While this process determines the heirs of the estate, it, alone, may be insufficient to transfer title to property. For instance, financial institutions often require “letters of administration” to transfer funds. Letters of administration require a court created administration.
(3) Court Created Intestate Administration
The court may create an independent administration if heirs agree on who will serve as independent administrator. 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
Some title companies will accept an affidavit of heirship 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, Texas intestacy laws, or services in Austin, Round Rock, or surrounding central Texas areas, contact me.