The word "Probate" often invokes anxiety for a family already dealing with a death of a loved one. There are worries about complexity and cost in addition to not knowing who to turn to for help. Crane Law Firm provides the following information to address some of these concerns and to help you become more familiar with probate terminology and procedures.
The property you leave behind upon death that does not pass under a joint account, by beneficiary designation, a Transfer on Death Deed, or Lady Bird Deed is known as your estate. Probate is a legal process for distributing estate assets. It often involves the following:
Proving that a Will is valid under Texas law.
If no will, proving who the heirs of the deceased are.
Appointment of an Executor or Administrator.
Identifying all the property owned by the deceased.
Paying debts and taxes.
Distributing the property to the beneficiaries or heirs.
A hearing before a judge is required in most probate procedures, whether to prove up a will or to establish the heirs of the deceased. Once an Executor or Administrator is named, he or she will work with his or her attorney to comply with laws regarding notice to beneficiaries, heirs, and creditors, to file an inventory, and to distribute estate assets at the proper time.
SMALL ESTATE AFFIDAVIT
A small estate affidavit, used when there is no will, is similar to an affidavit of heirship. It can be used for solvent (assets exceed debts) estates worth less than $75,000 (not including homestead). Before selecting this option, it helps to consult with banks or other companies holding assets of the deceased to ensure that they will accept a small estate affidavit. Some banks may require a determination of heirship and an administration. Finally, a small estate affidavit can only be used with a house if it was the homestead of both the deceased and the heirs (such as a surviving spouse or minor children).
PROBATING WILL AS MUNIMENT OF TITLE
When there is a will, and the only property of the estate is real property (house, land, or mineral interests), probating a will as a muniment of title might be a good option to transfer title. This type of probate is used for simple estates where the deceased had no debts (including Medicaid claims) other than a mortgage.
AFFIDAVITS OF HEIRSHIP
Probate may not be necessary when an affidavit of heirship can be used. This type of affidavit, used in estate where there are no debts, is typically done when there is no will. It documents the family history of the deceased and is sworn to by two disinterested witnesses. Once filed in the real property records of a county, the affidavit creates proof of ownership of real property (e.g., house, land) in the names of heirs. Affidavits of heirship will not work in every case, as they do not have the same legal weight as the probate procedures listed below, and do not confer on anyone the right to do business on behalf of the estate. When an affidavit of heirship is not sufficient, probate may be needed.
When there is no will and when neither an affidavit of heirship nor small estate affidavit is enough, Texas has a court procedure called a determination of heirship. This process involves going before a judge and asking for an order declaring who the heirs are. It includes filing an application with the court, the appointment of an attorney ad litem (to represent unknown heirs), and a hearing with witnesses. The judgement declaring heirship is more widely accepted than an affidavit of heirship or a small estate affidavit.
An independent administration enables an Executor or Administrator to pay debts, sign deeds, and perform other actions without a court's involvement. This is often the most effective procedure for taking care of estate matters. An independent administration is authorized by most Texas wills. Without a will, a determination of heirship is necessary along with the consent from all heirs.
In a dependent administration, the Administrator must have the court's permission before paying debts, closing accounts, disposing of property, or taking other actions during probate. A dependent administration may be necessary for estates with substantial debts, when beneficiaries do not get along, if there are disabled or minor heirs, or when the will is contested. A dependent administration without a will must include a determination of heirship.