What Do I Do If A Loved One Dies Without A Will?
"My loved one died, but he didn't have a Will. What do I do?"
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 exempt property, including the 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.
- Application for Determination of Heirship (a court proceeding)
- Non-court Involved Affidavit of Heirship
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.
Here's how the formal application for the determination of heirship works.
Application for Determination of Heirship (a court proceeding)
What is the first step?
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.
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 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. 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 court will conduct a hearing at which testimony backing up the facts alleged in the pleadings must be presented. 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 allow the transfer of assets of the deceased.
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.
Affidavit Of Heirship
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. 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.
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 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.
Two independent witnesses who would not benefit from any inheritance, who have a long history of knowledge of the family history, must be identified and also sign the Affidavit. 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.
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.
The Affidavit should be recorded in the official public records in every county where the deceased owned real estate.
Hopefully, third parties involved with the estate will accept the Affidavit as authority for the transfer of assets as set out therein.
Obviously, this process is complicated and the assistance of an attorney is helpful in making sure you do it right. Some people are accessing a form online for the Affidavit Of Heirship and not completing it correctly. Later, when a title company, bank, investment company, or other third parties will not accept the incorrect Affidavit, the expense to have an attorney straighten out the situation can be even more than it would have cost to draft the Affidavit initially.
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.
*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)
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