Texas Probate Options for Intestate Estates

When a person passes away and does not have a will, the person is said to have died "intestate."  Their assets are subject to distribution in accordance with the intestacy laws of Texas.  The persons who are entitled to assets under intestacy law depends upon the family members of the decedent, primarily whether there is a surviving spouse, whether there are children of the decedent, and whether the surviving spouse is a parent of the children.

In order to distribute the assets accordingly, the Texas Probate Code offers three probate options: filing an affidavit of heirship, an heirship proceeding and application for letters of administration, or if the estate meets the requirements, a small estate affidavit. Which option applies with depend primarily on the assets and liabilities of the estate.

Affidavit of Heirship

An affidavit of heirship is primarily used in estates consisting of real property.  The affidavit is filled out by two disinterested witnesses and filed in the county in which the real property is located. The affidavit acts as evidence of chain of title to the property from the deceased person to his/her heirs. The problem with this procedure is the affidavit must be on file for 5 years before it is considered prima facie evidence that the information in the affidavit is true. So, if someone was to challenge title to the property or the affidavit within five years of the filing of the affidavit, the affidavit will not be conclusive as to the heirs entitled to the property.

Determintation of Heirship and Application for Administration

A determination of heirship and application for administration involves a judicial determination of the heirs through a court proceeding and sometimes a dependent administration of the estate. The conclusive nature of the judicial determination of the heirs of the estate is generally favored over the five year wait time of an affidavit of heirship. A determination of heirship can be used to transfer the estate assets through an order, or if an administration is needed (for example if there were bank or brokerage accounts and the banks refused to accept a determination of heirship and wanted letters of administration) an application for administration can be made and letters of administration would issue. If all the heirs are known and agree to an independent administrator, one may be appointed. If all the heirs do not agree, the administration would be dependent, which requires court permission for the administrator to act in most circumstances.  In cases where there is only one heir, an independent administration should be attainable. Even in an independent administration, this process is generally more expensive and time consuming than an affidavit of heirship or small estate affidavit.

Small Estate Affidavit

A small estate affidavit is used when a person dies without a will, the estate value is less than $50,000, excluding homestead and exempt property, there is no other real property other than the homestead, it has been 30 days since the decedent’s death, there is no probate pending, and there are two disinterested witnesses who file an affidavit of heirship. This is a simpler and cheaper option, if it is applicable. This procedure is not recommended if the estate has stocks, bank accounts or brokerage accounts as banks are less likely to accept a small estate affidavit. Transfer agents generally prefer letters of administration which are issued in a probate proceeding, specifically an application for administration mentioned above.

The above three procedures are only required when there are "probate assets" that need to be transferred.  If the only assets are "non-probate" such as life insurance proceeds payable directly to a beneficiary, payable on death accounts, property held as joint tenants with right of survivorship, trust assets, or other assets which pass automatically on death, then probate is not necessary.

It should also be noted, the above procedures may be used when the decedent left a will but it was not probated within the time required by Texas law.  Under Texas law, a will must be probated within 4 years of the decedent's date of death.  If it is not, generally the decedent's assets are distributed according to intestacy law, with a limited exception where the will may be able to be probated as muniment of title.  If muniment of title is not possible due to debts of the estate, or for other reasons, the above procedures may be used to distribute the decedent's assets under intestacy law.