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Probate without a Will

PROBATE WITHOUT A WILL

Types:

  1. Affidavits of Heirship
  2. Small Estate Affidavit
  3. Determination of Heirship
  4. Court-created Independent Administration
  5. Dependent Administration

AFFIDAVITS OF HEIRSHIP ($500.00 plus filing fees)

Used to establish title to real estate where the only asset owned by the decedent is real estate.

To qualify to use Affidavits of Heirship, the following must be true:

  1. The decedent must have died without a Will;
  2. No petition for the appointment of a personal representative may be pending or have been granted; and
  3. No formal administration is necessary.

There is no administration with this type of probate. An affidavit of heirship includes facts about the decedent's family and asset(s) of the estate. The affidavit is signed before a notary public by two disinterested witnesses. Or, each witness can sign a different affidavit. The affidavit(s) is/are then filed in the real property records of the county in which the real property is located.

SMALL ESTATE AFFIDAVIT ($1,000.00 plus filing fees)

Used to collect a small amount of money owed to the estate (such as a small bank account) or to transfer title to real property that still qualifies as a homestead upon the death of the decedent. Although this type of probate could be available to transfer money from bank accounts to beneficiaries, many financial institutions insist on only releasing estate funds to a court-appointed executor or administrator. The institutions do this by insisting that they receive "Letters Testamentary" or "Letters of Administration" prior to releasing estate funds. These "Letters" are the documents issued by the Court to the court-appointed executor or administrator. If the deceased has securities or funds in bank accounts, it often justifies the additional time and expense needed to ask the court for an administration. You would certainly want to confirm with the financial institutions in which the decedent has accounts that they will accept an Order Approving a Small Estate Affidavit prior to choosing this type of probate for the estate.

To qualify to use a Small Estate Affidavit, the following requirements must be true: 

  1. The decedent must have died without a Will;
  2. The assets of the estate, exclusive of homestead and exempt property, must exceed the known liabilities of the estate, exclusive of liabilities secured by homestead and exempt property;
  3. No petition for the appointment of a personal representative may be pending or have been granted;
  4. Thirty days must have elapsed since the death of the decedent; and
  5. The value of the entire assets of the estate must not exceed $75,000.00, exclusive of homestead and exempt property.

There is no administration with this type of probate. A small estate affidavit includes facts about the decedent's family and asset(s) of the estate. The affidavit is signed by all of the heirs and by two disinterested witnesses before a notary public. The affidavit is filed with the Court, which either approves or denies the affidavit. If approved, the Court issues an Order Approving Small Estate Affidavit. The Order provides authority for the bank to transfer the money to the heirs named in the affidavit.

DETERMINATION OF HEIRSHIP ($1,750.00 plus fees required by court)

Used to establish title to estate property where the assets include real and/or personal property and the estate does not qualify for a small estate affidavit. This type of probate is also used when the all of the heirs of the estate cannot or will not sign a small estate affidavit. 

To qualify for the court to issue a Judgment Declaring Heirship, the following requirements must be true:

  1. The decedent must have died without a will or when there was a will but any real or personal property was omitted from such will;
  2. There are no debts due and owing by the estate; and
  3. There is no need for a formal administration to pay bills or collect and distribute estate property.

There is no administration associated with this type of probate. The Court appoints an attorney ad litem for unknown heirs who will investigate the family of the decedent. Then, after a hearing, the Court will issue a Judgment Declaring Heirship naming the heirs of the estate. The Judgment Declaring Heirship can then be used to prove title to estate property. However, many financial institutions insist on only releasing estate funds to a court-appointed executor or administrator. The institutions do this by insisting that they receive "Letters Testamentary" or "Letters of Administration" prior to releasing estate funds. These "Letters" are the documents issued by the Court to the court-appointed executor or administrator. If the deceased has securities or funds in bank accounts, it often justifies the additional time and expense needed to ask the court for an administration. You would certainly want to confirm with the financial institutions in which the decedent has accounts that they will accept a Judgment Declaring Heirship prior to choosing this type of probate for the estate.

COURT-CREATED INDEPENDENT ADMINISTRATION ($2,500.00 plus fees required by court)

Used when there is a necessity for an administration and all of the heirs of the estate agree to an independent administration and the person to serve as administrator.

To qualify for the court to create an independent administration, the following requirements must be true:

  1. The decedent's date of death must have been within the last four years;
  2. The decedent must have died without a Will or the Will must have failed to distribute all of the decedent's property;
  3. There must be a need for a formal administration;
  4. All of the heirs of the estate agree on having an independent administration;
  5. All of the heirs of the estate agree on a qualified person, firm, or corporation that will serve as independent administrator;
  6. The Court must find that an independent administration is in the best interest of the estate (note: the court will usually not grant an independent administration if a minor child is an heir to the estate). 

There is an administration associated with this type of probate. All of the heirs of the estate must either sign on to the Application or sign a consent form. The Court then appoints an attorney ad litem for unknown heirs who will investigate the heirship facts of the decedent. After a hearing, the Court will issue a Judgment Declaring Heirship which names the heirs of the estate. The Court will also determine if there is a need for an administration and whether an independent administration is in the best interest of the estate. If so, the Court will appoint an Independent Administrator of the Estate and issue Letters of Administration to the Administrator. The administrator will then be responsible for collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the legal heirs of the estate in accordance with the Judgment Declaring Heirship. We would assist the administrator in publishing a notice to creditors in the local paper and filing an inventory of the estate's assets with the court. 

DEPENDENT ADMINISTRATION ($350/hr for attorney, $125/hr for legal assistant)

Used when there is a necessity for an administration of the state and all of the heirs of the estate do not agree to an independent administration or the person to serve as administrator. A Court will often require a Dependent Administration when one or more of the beneficiaries is a minor. There is no way to estimate how much time an attorney will need to spend on a Dependent Administration. Thus, this type of probate does not qualify for a flat fee. The size of the estate, the amount of dissention among beneficiaries, and the complexity of legal issues involved will greatly affect the fee.

To qualify for a Dependent Administration, the following requirements must be true: 

  1. The decedent's date of death must have been within the last four years;
  2. The decedent must have died without a Will or the Will must have failed to distribute all of the decedent's property; and
  3. There must be a need for a formal administration.

There is an administration associated with this type of probate. After a hearing, the Court will determine if there is a need for an administration. If so, the Court will appoint an Administrator of the Estate and issue Letters of Administration to the Administrator. The administrator will be responsible for collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the heirs of the estate in accordance with the default inheritance rules of the State of Texas. The Court closely supervises the administration of the estate. Bills cannot be paid and assets cannot be sold or distributed without the approval of the Court. Periodic accountings must be prepared to advise the Court of the status of the estate. 

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