Handling an Estate

Probate is the court procedure in which the judge determines if a will is valid. When an attorney proves that a will is valid, the judge admits it to probate. However, probate also includes all procedures related to the administration of an estate. Probate cases begin when an attorney files an application to probate a will or for the administration of an estate (if the deceased person did not have a will). Almost all probate cases require a lawyer. Read Probate Court Basics | Texas Law Help for more information about probate.

If a person dies without a will, they are intestate. The property will pass to the person’s heirs according to Texas law. The heirs decide who will be the administrator of the estate, and their attorney files an application for administration.

Who gets what depends on:

1. How closely related the heirs are to the decedent, and
2. The characterization of the property in the estate—whether the property is personal or real property, community (marital) property, or separate property.

Nothing will pass to the heirs until the probate court is satisfied that all heirs have been identified, and the property is correctly characterized. Probating an intestate estate involves the appointment of an attorney who locates all the heirs. The fees for that attorney are paid from the funds in the estate.

Yes, your attorney files an application to probate the will, and the judge determines whether the will is valid. After resolving the deceased person’s debts and taxes, the executor distributes the property according to the will.

Deadline for probate: The will must be filed in the probate court (“admitted to probate”) within 4 years of the date of death; otherwise, the estate is treated as if there was no will. After 4 years, the will can be used only to prove title to real estate if the beneficiary was not at fault for failing to probate the will within 4 years.

Some assets pass to the beneficiaries without probate. Insurance proceeds, retirement funds, bank accounts with payable on death beneficiaries, and other financial assets pass to the beneficiary named in the contract or on the account. Joint bank accounts and jointly held real estate with a right of survivorship will pass to the other joint owner(s).

Access to account information: If it’s been over 90 days since death and no one has applied or been appointed by the probate court as a “personal representative” (person who handles the distribution of the property), the court can order a bank to release the decedent’s balance information to a spouse, heir, creditor or another with a claim or interest in the estate.

Texas Estates Code 153.

Debts are paid from the estate to the extent that there are assets to cover them. The IRS, Medicaid, and creditors can file claims against the estate for payment or reimbursement. If you transfer a home through a transfer on death deed or Lady Bird deed, Medicaid cannot file a claim against the estate.

Small estate affidavits transfer real and personal property if everything in the estate, excluding the homestead and exempt property, is less than $75,000. Additionally, the debts cannot be larger than the value of the estate. You can only use a small estate affidavit to transfer a home to a surviving spouse or minor child. It cannot be used to transfer a home to an adult child, even if the adult child lived in the home. The affidavit must be witnessed by two people who are not heirs and who can swear to facts about the decedent and the decedent’s family members. Additionally, all heirs must sign the affidavit. The witnesses and heirs need to sign in front of a notary. The small estate affidavit must be filed with the probate court. For more information and forms, read I want to use a Small Estate Affidavit to probate an estate. | Texas Law Help

Texas Estates Code 205.

If the decedent died intestate, an Affidavit of Heirship for Motor Vehicle can transfer vehicle title to one of the heirs. Note: All the heirs must agree which heir gets the vehicle, and all must sign the Affidavit in front of a notary. No court approval is required.

Some special deeds allow real estate to transfer outside of probate and do not require court approval. They do not wipe out liens or money owed on the property, however.

Transfer on Death Deeds (TODDs): Used by an owner of real property to transfer the owner’s interest in the property on death without going through probate. A TODD must be in writing, signed by the transferor before a notary, include the name and address of the beneficiary, state that the transfer will occur at the transferor’s death, and be recorded during the transferor’s lifetime in the deed records of the county where the property is located. To inherit, the beneficiary must survive the decedent by 120 hours. More information and forms can be found at Transfer on Death Deeds at TexasLawHelp.org.

Texas Estates Code 114.

Life Estate or Lady Bird Deed: This deed transfers legal title to the beneficiaries during the decedent’s lifetime; the owner retains the right to live on the property until death, when the property passes to the beneficiaries.

Lady Bird Deeds | Texas Law Help explains the different ways to transfer property after you die.

An affidavit of heirship does not require court approval. It is a statement of facts concerning the family history, genealogy, marital status, or the identity of a decedent's heirs. Although the affidavit of heirship does not transfer title, it is a record of the lawful heirs to the deceased person’s home. You can only use an affidavit of heirship to transfer the deceased person’s real estate. The affidavit of heirship must be filed in the real property records in the county where the property is located.

You can use an affidavit of heirship to transfer title to real estate when the decedent died intestate, or the will was not probated within four years of the decedent's death. Like the small estate affidavit, you will need two witnesses who knew the deceased person and their family history. For more information and to learn how to use this procedure, go to How to Draft an Affidavit of Heirship | Texas Law Help

Texas Estates Code 203.