Many times, clients with a loved one who has passed and had prepared a will assume that there must be a probate of the will. Sometimes, however, if your loved one has no assets that are not already disposed of by beneficiary designation or payable on death provisions, there is no need to probate a will. This frequently happens if they had already sold their home and were residing in a nursing home, and the only assets they still owned were liquid assets.
I have addressed in another blog several steps that can be taken as part of the estate planning process that help avoid the need for probate. Even if those steps have not been taken, if your loved one died having a will, a probate of the will may not be necessary. Texas law allows alternative procedures to handle the passage of an estate that are quicker, less involved, and less expensive than a full probate.
These are two alternatives:
- Probate as a Muniment of Title
- Affidavit of Heirship
Probate as a Muniment of Title
This is still a court-administered probate proceeding, but it is much simpler than a full probate. This very strange-sounding name means a probate to “reflect the passage of title.” If there are no outstanding debts of the estate, except those secured by liens on real estate (but only if there are no such debts), this probate procedure can be used to do precisely that, pass title to assets as provided in the will.
All that is required is that the will be filed with the application for probate as a muniment of title, citation be posted at the courthouse for at least ten days, and the applicant appears before the county judge for one simple hearing to admit the will to probate as a muniment of title. Nothing more needs to be done then than filing certified copies of the probate documents in any other counties where the deceased person owned real estate. The probate documents can be presented to other third parties to require them to transfer assets as provided in the will.
The cost of this simplified probate can be significantly less than a full probate. Here's a blog discussing the cost in more detail.
Affidavit of Heirship
This is a statutorily authorized procedure in Texas, and it is widely accepted by third parties to transfer assets as provided in the will. The affidavit of heirship is merely a document drawn up by the attorney which sets out facts that would determine heirship of the beneficiaries under Texas law and attaches a copy of the will. The affidavit is filed in the official public records of any counties where the deceased person owned real estate or other property.
The affidavit must be signed by the heirs (preferably all the heirs, but this is not always required) and two independent witnesses who can swear that they knew the deceased person for an extended period of time and that the facts of heirship recited are correct. All of the signatures must be notarized.
Not all third parties will accept the affidavit as authority to transfer assets, however, so you should go over what assets are involved in the estate with the attorney before the affidavit process is begun. If the affidavit can be used, it is much less expensive than probate usually. Getting all of the signatures and all of the necessary facts gathered, however, may be more trouble than the money saved.
If you would like to discuss whether one of these probate alternatives would be possible for your deceased loved one, contact Adair M. Buckner for a free initial consultation*.
*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)