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  September 25, 2019

In this series of blogs, I am outlining various types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. 

  • In Part One, I discussed probate as a muniment of title, which is usually one of the least expensive procedures. 
  • In Part Two, I discussed the cost of an independent administration of the estate. Both of those procedures require the decedent to have had a will. 
  • In Part Three, I discussed how if there is no will, the least expensive way to settle the estate through a court proceeding is a small estate affidavit. 
  • In Part Four, I discussed the high cost of a proceeding to determine heirship and for administration of the estate.
  • In Part Five  I discussed the high cost of a dependent administration of the estate. 

Texas law is unusual in that it recognizes alternatives to formal probate for passage of assets in an estate, which may be much less expensive. You should always talk with your attorney about whether you could use one of these alternatives. Sometimes, these “short-cut” procedures will be effective and accepted by third parties to legally transfer assets, and sometimes they will not. 

If an alternative is a better fit for your situation, here is what you need to know about the most common alternative: a general affidavit of heirship.

What Is A General Affidavit Of Heirship?

The Texas Estates Code sets out a form for an affidavit of heirship. This is very similar to the pleading that must be filed in a formal application to determine heirship.                                    house keys with a house sign attached

The affidavit is a sworn statement by at least one—and possibly all—of the heirs of the estate. The number of heirs required to sign the affidavit depends on the purpose of the affidavit and the third party to whom it will be presented. 

The affidavit sets out the family history of the decedent fully enough to determine, under the Texas laws of inheritance, who would be entitled to receive the estate. The affidavit should also describe the property owned by the decedent.

The affidavit must also be sworn to by two independent witnesses. These witnesses will need to state, under oath, that they were acquainted with the decedent for an extended period of time and know the facts of heirship to be true. They must not stand to gain in any way from the estate. 

After this is finished, the affidavit should be filed in any county where the decedent owned real estate. The affidavit may also be presented to third parties holding other assets that should be transferred to the legal heirs. 

The caveat to using this probate alternative is that not all third parties will accept this affidavit as authority to transfer assets. It is wise to check with the third parties ahead of time to be sure they will act on the affidavit rather than a formal legal proceeding. 

The Cost Of A General Affidavit Of Heirship

The attorney’s fees for preparation of this affidavit will depend on:

  • How many heirs are involved
  • How hard they are to track down
  • Where they live
  • How hard it is to gather information on the estate assets

A ballpark fee for preparation of the affidavit is between $750 for a very simple estate with few heirs to several thousand dollars for a more complicated estate with many heirs. The filing fees to record the affidavit in each county where the real property is located usually run about $50 to $75 in Texas. 

Affidavit Of Heirship For Motor Vehicle 

Texas law also provides a pre-printed form affidavit of heirship for a motor vehicle, which is available at county tax offices to transfer a vehicle out of an estate. The information needed to complete this form depends on the requirements of each county tax office. Some offices will allow only one heir to complete the form, and others will require more than one or all of the heirs. 

If you determine that the county tax office will allow you to use this affidavit to transfer a motor vehicle, there is no cost other than the transfer fees. 

If you would like to talk about more about probate or administration of an estate, please call Adair M. Buckner for a free initial consultation.*

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*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

** Please remember that the cost estimates given are only general, ballpark numbers for the Amarillo area and the costs can vary widely depending on many variables in your individual situation.

Article Topics:
Estate Planning Probate Legal Tips