What Do I Do If A Loved One Dies Without A Will?

"My loved one died, but they didn't have a Will. What do I do?"

Unfortunately, I get this call many times every day. There are three options for what you can do depending on many different factors that must be analyzed for each situation. In Texas, these are 1) if statutory requirements are met, a Small Estate Affidavit probate, 2) a formal court Determination of Heirship and estate administration, or 3) an informal Affidavit of Heirship document.

The Small Estate Affidavit Probate Procedure

If the property in the estate does not exceed the value of $75,000, not including the value of exempt property, including the homestead, a court proceeding called a Small Estate Affidavit can sometimes be used. The specific requirements to qualify to use this procedure are numerous and are outlined in this blog. This procedure is much less expensive than a Determination of Heirship and estate administration. It results in a court order recognizing who are the legal heirs to the estate, which third parties should honor in distributing assets. 

In most situations, however, this very simplified proceeding cannot be used because of failure to satisfy the requirements of the statute. In those situations, there are generally are two options.

• Application for Determination of Heirship (a court proceeding) and either a dependent or independent administration of the estate
• Non-court involved Affidavit of Heirship document

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 document, which is authorized by Texas statute in some cases. Even title companies routinely accept this Affidavit of Heirship to transfer title to real estate unless there is a very large amount of money involved.

Here's how the formal application for the Determination of Heirship works.

The Application For Determination Of Heirship (Court Proceeding)

Step One

If you and your attorney have determined that it is safer to go the route of a court proceeding to establish how title to assets should pass from your loved one's estate, this formal action will be required. You, all other heirs, and two independent witnesses who would not benefit from any inheritance must all swear to facts of family history determining who are the legal heirs under Texas laws of intestate succession (who inherits if there is no Will). These facts will be set out in the pleadings filed with the probate court in the county where the deceased person lived. A filing fee has to be paid to begin this action.

Step Two

The most cumbersome requirement to this proceeding is that the court must appoint an attorney ad litem to represent the interests of potential unknown heirs, and a notice to unknown heirs must be published in the newspaper in the county where the probate is filed. This is true in every application, even though all sworn pleadings show there are no unknown heirs. Apparently, people have lied frequently enough in the this proceeding in the past that the Texas legislature saw fit to make these requirements in every case. These two legal requirements add significant expense to the application to determine heirship proceeding.

The attorney ad litem will be required to research independently the facts of family history alleged in the pleadings, by talking to heirs, the independent witnesses, and doing online research to confirm the truthfulness of the alleged family history. If the attorney ad litem is not satisfied with the completeness and truthfulness of the statements, the court is not likely to grant a Determination of Heirship until the attorney's issues are resolved. The attorney ad litem must file a report with the court before the hearing on the application can be held.

Step Three

The court will conduct a hearing at which testimony backing up the facts alleged in the pleadings must be presented. The attorney ad litem generally appears. The applicant and a witness to the facts of heirship must appear. After the hearing, a summary of their testimony under oath must be filed with the clerk. If the court is satisfied with the proof, a detailed order determining heirship, setting out the names of all the legal heirs and their interests in the estate, will be issued. This order then is the authority for third parties to transfer property of the estate to the proper heirs. This should be sufficient documentation to establish who the legal heirs are. 

This is not the end, however. The estate will also need to be submitted for either dependent or independent administration to grant a person the authority to act as administrator of the estate to accomplish the transfer of assets of the deceased. This step can be combined with the declaration of heirship proceeding or done separately. 

Step Four

In addition to creating a dependent or independent administration of the estate, a certified copy of the application and order determining heirship should be recorded in the official public records in every county where the deceased owned real estate, other than the county of the court where the action was filed. The county where the action was filed automatically picks up the application and order in its official public records so additional filing is not required there.

Conclusion

If this procedure is your only viable option, it obviously is complicated and expensive. You should have a discussion of the entire situation of the estate with a competent estate planning attorney to determine these steps are truly necessary to accomplish transfer of assets in the estate.

Informal Affidavit Of Heirship Document

Sometimes, we determine after a review of the assets of the deceased loved one that a more informal, less expensive Affidavit Of Heirship document would be sufficient. If it is a small estate, with assets of lower value, this often will work.

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. If the "Affidavit" is rejected, much of the same information can be brought forward in the formal court administered Determination of Heirship proceeding and estate administration. There will be substantial additional expense if that occurs, however.

Step One

Like the formal Application to Determine Heirship proceeding, all of the legal heirs under Texas laws of intestate succession (who inherit if there is no Will) will have to be identified. The Affidavit Of Heirship document then must be drafted, setting out the family history of the deceased loved one to demonstrate that these are, in fact, the legal heirs. The family history should include marital history of the deceased, names and dates of birth of children, and recite the date of death of any legal heirs that predeceased him or her.

Step Two

Two independent witnesses who would not benefit from any inheritance, who have a long history of knowledge of the family, must be identified and also sign the Affidavit attesting that they know the information set out in the Affidavit is true. Those people typically are neighbors, more distant relatives, and church members.

All of the heirs and the two independent witnesses must swear under oath, before a notary public, that the facts stated in the Affidavit are true. Thus, everyone has to sign the Affidavit in front of a notary. Sometimes, if there are many heirs that are across the country, this can be a time-consuming and difficult task.

Step Three

The Affidavit Of Heirship can also include a Family Settlement Agreement, by which all of the heirs can agree to divide the property of the estate differently than what would be required by the Texas laws of intestacy.

Step Four

The Affidavit should be recorded in the official public records in every county where the deceased owned real estate.

Conclusion

Hopefully, third parties involved with the estate will accept the Affidavit as authority for the transfer of assets as set out therein because of the substantial savings and greater simplicity of the informal Affidavit. Many third parties will recognize the Affidavit to transfer personal property as well as real estate owned by the deceased. Each case is different, though, and you won't know what will be accepted until you try it.

Obviously, figuring out what to do if your deceased loved one did not have a Will is complicated and the assistance of an attorney is helpful in proceeding correctly. I have had some clients who have accessed a form online for the Affidavit Of Heirship, who have not completed it correctly. They discover when a title company, bank, investment company, or other third parties will not accept the incorrect Affidavit, that the expense to have an attorney straighten out the situation is even more than it would have cost to have an attorney draft the Affidavit initially. Self-help is not always the right approach.

Meeting With An Attorney Is Always A Wise Decision

If you would like to request a free initial consultation* with Adair M. Buckner, Attorney At Law, about estate planning or probate, please click below.

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