Families frequently come to me needing to know how to figure out who gets what when a loved one dies without a will. Unfortunately, the answer is that they may be in for a lot of expense and time in a very complicated legal proceeding.
Texas law provides for a shortened, less complicated, less expensive form of probate in specific circumstances called probate as a muniment of title. This funny-sounding procedure really means that your loved one’s will is officially recognized as valid by the probate court and placed of public record as notice to third parties to honor the terms of the will for transfer of property. This is a very simple process compared to a full, regular probate.
A fairly new estate planning trick that is extremely effective and low cost is a deed with a retained life estate or “Lady Bird” deed. This tool can be used for all types of real estate interests.
Estate planning isn't just for rich or older individuals. Even young, asset-poor 20-somethings should start thinking about how their property will be distributed in the event of a tragedy. Drawing up an estate plan is not as much an action you need to take for yourself, but one you should take for your loved ones.
Just like an older individual, a young, single person has as much need for a will to designate who would receive anything in the event of his or her death. Whether you have a little or a lot, without a will, the State of Texas will assume your parents should receive your estate. This may not be your preference. Therefore, creating an estate plan will help ensure your wishes are met.
In addition, in the event of your passing, a loved one would also have to spend a great deal of money to go through an estate administration process. If you draw up a will, you could prevent your parents from enduring this stressful, expensive situation.
If you have ever gone through a hospital admissions process, you’ve likely been asked if you have a living will (also known as a directive to physicians) and a medical power of attorney.
This blog is part two of What Do I Do If A Loved One Dies Without A Will. Part One discussed an Application To Determine Heirship proceeding, the more formal court proceeding to determine heirs and order transfer of property.
Sometimes, we determine after a review of the assets of the deceased loved one that a more informal, less expensive “Affidavit Of Heirship” would be sufficient.
It is not always certain that third parties will accept the informal “Affidavit,” but because it is so much less expensive than the formal court proceeding, it may be worth trying this first.
Unfortunately, I get this call many times every day. If the property in the estate does not exceed the value of $75,000, not including the value of a homestead, a court proceeding called a “small estate affidavit” can sometimes be used. However, in most situations, this very simplified proceeding cannot be used. In those situations, there are generally are two options.
Which of these two options will be best varies with each situation, depending on the types of assets owned and the third parties who will be required to transfer the assets. Some third parties only will accept the court proceeding. Commonly, this could be brokerages and insurance companies. However, many third parties will accept the less expensive Affidavit of Heirship. Even title companies routinely accept an Affidavit of Heirship to transfer title to real estate unless there is a very large amount of money involved.
This is part one of What Do I Do If A Loved One Dies Without A Will? Here I will discuss the more formal application for determination of heirship.