In some Texas cases, the assets owned by the Decedent at the time of death may not necessitate going through the probate process. Instead, alternatives may exist that will avoid the time and expense of the probate process and will yet transfer the assets of the Estate. Generally, these alternatives are most effectively used when the estate consists primarily of real estate. Likewise, these alternatives are generally available only when the Decedent did not have any debts outstanding at the time of death, except debts secured by real estate.
The Affidavit of Heirship, the Small Estate Affidavit and the Judicial Determination of Heirship are the three alternatives to formal probate in Texas, and each of them requires a higher level of Court involvement than the other.
Affidavit of Heirship....
The Affidavit of Heirship is generally used when someone died without a Will and left only real estate. Instead of going through the probate process to have title to the property transferred to the Decedent’s heirs, the heirs can, instead, file the Affidavit of Heirship in the deed records of the county in which any piece of real estate owned by the Decedent lies.
According to the provisions of the Probate Code, the Affidavit must be signed by two disinterested witnesses—i.e. two people who knew the Decedent and his family history but do not stand to gain anything financially from the estate. In the Affidavit, those witnesses must swear under Oath to each of the following issues:
- That they knew the Decedent
- That the Decedent died on a certain date in a certain county
- The identity of the Decedent’s family members and heirs
- A statement that the Decedent did not owe any debts at the time of his death
- A statement that the witnesses do not stand to gain financially from the Estate.
Once the Affidavit has been signed and recorded in the deed records of the County, it has the effect of linking the chain of title in the Decedent’s real estate to his heirs. At that point, most title companies and real estate companies will allow the heirs to sell the property.
Small Estate Affidavit....
The Small Estate Affidavit is similar to the Affidavit of Heirship. However, the Small Estate Affidavit is filed with the Probate Court in the county in which the Decedent resided at the time of his death or any county in which he owned real estate. The affidavit must include the same information that was required in the Affidavit of Heirship, but in addition, it must be signed by all of the Decedent’s heirs as well as two disinterested witnesses.
Once the Affidavit is complete, it is filed with the Probate Court, which will issue an Order approving the Affidavit and ordering that all property owned by the Decedent be transferred pursuant to the Affidavit.
While the Small Estate Affidavit is an effective alternative to probate, it is only available for estates having less than $50,000 in assets, exclusive of real estate. Like some other methods of administering an estate that are very unique to Texas, the Small Estate Affidavit sometimes meets resistence from banks and financial institutions that are not familiar with Texas Probate laws. As a result, the use of the Small Estate Affidavit to attempt to claim bank accounts, brokerage accounts, and other financial accounts can sometimes fail, with the bank or institution requiring a full probate of the Estate.
Judicial Determination of Heirship....
When someone dies without leaving a Will, the Court can conduct a formal Determination of Heirship. During this process, the Court will make a formal declaration as to the identity of the Decedent’s heirs. Pursuant to that declaration of the heirs, the Decedent’s property can be divided and distributed among the heirs.
The benefit of the Determination of Heirship relates to the fact that a Court has made a formal Judgment finding the identity of the Decedent’s heirs. From that point forward, any attempts to include someone else as an heir of the Estate will be void, unless the Judgment can be modified by the Court. This creates a finality to the finding of the heirs.
Conversely, however, the Determination of Heirship proceeding can be expensive and somewhat time-consuming. The Determination requiring the filing of an application with the Probate Court, and the Court is then required to appoint an independent attorney to investigate the identity of the heirs. Once that attorney has reported his findings to the Probate Court, the Court will schedule a hearing to issue the determination as to the identity of the heirs. At that hearing, the Court will require two disinterested witnesses to testify to essentially the same facts required for the Affidavit of Heirship.
The Determination of Heirship is a mechanism used many times in conjunction with the Dependent Administration of an estate of someone who died without a Will. However, the Determination of Heirship can also be completed independently of any probate process. When it is, the assets are transferred pursuant to the Court’s Order determining the heirs, and there will be no executor or administrator of the Estate.
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[06/14] — F+B Managing Partner Don D. Ford III appointed by the Texas Supreme Court to the Judicial Branch Certification Commission.
[06/14] — F+B Managing Partner Don D. Ford III spoke at South Texas College of Law's 29th Annual Real Estate Law Conference June 6, 2014.
[03/14] — Ford + Bergner's Houston Office is Moving Effective April 1, 2014