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Transferring the Deceased's Property Without Going to Court

Wills & Estate Planning

A deceased person's property may sometimes pass without requiring a formal court proceeding.

Here, learn about ways a deceased person's property may pass on to their heirs without the need for a formal court proceeding, like:

  • small estate affidavits,
  • affidavits of heirship,
  • statements of inheritance for mobile homes,
  • applications to determine heirship, and
  • transfer on death deeds (which must be prepared before you die).

Can you transfer ownership of the deceased's property without going through the formal probate process?

Some of the deceased's ("decedent's") property may pass without the need for a formal probate process. Methods include: 

When can you use a small estate affidavit?

Chapter 205 of the Texas Estates Code lets the heirs at law (distributees) of someone who died intestate (that is, died without a will) file a small estate affidavit with the court as an alternative to going through the probate process.

For the distributees to file the small estate affidavit, the following must be true about the estate:

  1. No petition for the appointment of a personal representative is pending or has been granted.
  2. Thirty days have passed since the decedent has died.
  3. The value of the assets of the decedent’s estate, excluding the value of the decedent’s homestead and exempt property, is less than or equal to $75,000.

How do you prepare a small estate affidavit?

It must include a list of all known estate assets and liabilities, including which assets are exempt, and contain the relevant family history that shows each person’s right as an estate heir to receive estate assets.

The small estate affidavit must be sworn to by two disinterested witnesses (that is, people over age 18 who are not heirs to the estate). Each distributee of the estate who has legal capacity must sign as well.

What real property can be transferred with a small estate affidavit?

The small estate affidavit will only transfer title of the deceased person's homestead—and only to a surviving spouse or minor child. Any other real property owned by the decedent cannot be transferred by using or filing a small estate affidavit.

To transfer the decedent’s homestead to the distributees, the real property—and a proper legal description of it—must be listed in the affidavit among the deceased's assets. 

Once the judge approves the small estate affidavit, a certified copy of the affidavit and the court order approving it must be filed (that is, "recorded") with the real property records of the county where the real property is located.

When may a judge approve a small estate affidavit?

The judge must examine the small estate affidavit. They may approve it if they decide that it meets the legal standards set for small estate affidavits.

Who gets copies of the small estate affidavit?

A certified copy must go to each person who:

  • owes money to the estate, 
  • has custody or possession of estate property, or
  • acts as an agent for any other right belonging to the estate.

Where do you file a court-approved small estate affidavit?

File a certified copy of the affidavit and order of approval in the county property records. 

What is an application to determine heirship?

An application to determine heirship asks a court to decide who should get the deceased's property. Like an affidavit of heirship, it may be used when there is no will, or the property was left out of the will. Unlike an affidavit of heirship, it requires a court proceeding and attorney representation.

When, why, and how do you use an affidavit of heirship?

An affidavit of heirship can be used when someone dies without a will, and the estate consists mostly of real property titled in the deceased’s name. It is an affidavit used to identify the heirs to real property when the deceased died without a will (that is, intestate). For help preparing one, read How to Draft an Affidavit of Heirship.

The affidavit is filed ("recorded") with deed records in the county where the decedent’s real property is located. It does not transfer title to real property. However, Texas Estates Code 203.001 says it becomes evidence about the property once it has been on file for five years. The legal effect of the affidavit of heirship is that it creates a clean chain of title transfer to the decedent’s heirs.

Usually, a title company will accept the affidavit to show the chain of title for purposes of selling the real property, but the heirs should check with their title company to be sure.

Who can witness an affidavit of heirship?

The person witnessing the affidavit should not be an heir, related to the deceased, or have any interest in the estate. 

Witnesses to an affidavit heirship must swear to the following conditions:

  • They knew the decedent.
  • The decedent did not owe any debts.
  • The true identity of the family members and heirs.
  • The person died on a certain date in a certain place.
  • The witness will not gain financially from the estate.

How do you transfer a mobile home's title when the owner dies?

If the property to be transferred is a mobile home, use a Statement of Inheritance (Affidavit)

That form is available from the Manufactured Housing Division of the Texas Department of Housing and Community Affairs.

Can you use an affidavit of heirship to transfer title to a car?

Yes. There is a specific form for that. The Texas Department of Motor Vehicles provides forms for transferring a motor vehicle's title.

See How to Transfer a Motor Vehicle After Death for the forms and instructions.

How do you use a transfer on death deed?

While they are alive, a property owner can file a transfer on death deed.

If the deed is done correctly, the property will be transferred immediately upon the transferor's death. The property never becomes part of the estate, so probate is unnecessary to change ownership.

What are some other resources if I want to learn about transferring property after death & avoiding probate court?

Disclaimer

Nothing in this article should be considered legal advice. It is solely for informational purposes. Nor does it substitute for consultation with a competent probate attorney.  Nothing in this material creates or implies any attorney-client relationship.

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