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Handling An Estate

My relative died. How can property be transferred to the heirs?

It depends on whether your relative left a will and if the property must pass through probate. “Probate” is the legal process used to distribute a person’s property (called an “estate”) after that person dies. 

No will (intestate)

If a person dies intestate, the property will pass to the person’s heirs according to Texas law.

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; that is, whether the property is personal or real estate, 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. This can involve the appointment of an attorney whose fees are paid from the funds in the estate. 

Will

If there is a will, the property is distributed 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, and only if the beneficiary was not at fault for failing to probate the will within 4 years.

Nonprobate assets

Some assets pass to the beneficiaries without probate. Insurance proceeds, retirement funds, bank accounts payable on death and similar 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. 

Debts

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.

Real Estate passing outside of probate

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. Two of them are:

Transfer on Death Deed (TODD):  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 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 on TODDs at www.texaslawhelp.org.

Life Estate Deed: Transfers legal title to the beneficiaries during the decedent’s lifetime; gives the transferor the right to live on the property until death, when the property passes to the beneficiaries. 

Motor Vehicles

If the decedent died intestate, an Affidavit of Heirship for Motor Vehicle can transfer vehicle title to one of the heirs. Note: All of the heirs must agree which of them gets the vehicle, and all must sign the Affidavit in front of a notary. No court approval is required. The form affidavit, Form VTR 262, is available from the Texas Department of Motor Vehicles at http://txdmv.gov/forms-tac

Small Estate Affidavit

Requires court approval. Transfers real and personal property if everything in the estate, excluding the homestead and exempt property, is less than $50,000. The court can order disclosure of bank account balances (see above). The heir (usually the surviving spouse), must have resided in the homestead with the decedent when decedent died. 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. For a sample Small Estate Affidavit and checklist, visit www.co.travis.tx.us/probate/probate.asp.

Affidavit of Heirship

The Affidavit of Heirship does not require court approval. It transfers title to real estate when the decedent died intestate or the will was not probated within 4 years of the death of the decedent. The Affidavit of Heirship can be used to transfer all of the decedent’s real estate. The witness requirements are the same as the Small Estate Affidavit. A free Affidavit of Heirship form is at www.window.state.tx.us/taxinfo/taxforms/53-111-a.pdf.