When a person dies in order to settle the ownership of their assets the decedent's estate most go through a process called probate. Settling the estate involves dividing up the person's property, paying any debts they may have owed, and distributing what is left to the people who are legally entitled to it. There are different types of probate, depending on how the person's estate is set up. A person with a will may go through full probate, a muniment of title, or an affidavit of heirship. A person without a will may go through a proceeding to determine heirship, small estate affidavit, or affidavit of heirship.
Which type of probate is right for you will depend on many factors, including the size and complexity of the estate, whether there was a will or not, whether there are any contested issues, whether the decedent was married or not, whether the decedent had children or not (and if so, with whom), and your personal preferences.
If a person dies with a will
Full Texas Probate
Full probate is when a decedent had a will and letters testamentary are needed. Letters testamentary are a document that appoints an executor or administrator of an estate and confirms their authority to act. This document is issued by the court and is a required part of the probate process. It is what the executor shows banks and others that the executor has the authority to act on behalf of the estate.
The executor or administrator named in the will is not automatically granted authority to act on behalf of the estate. They must go through the probate process and be appointed by the court in order to have this authority.
Full probate in Texas is the most complete type of probate, and it involves a number of steps, including:
- Filing the will with the court
- A meeting with the judge of the court (called a hearing)
- Appointing an executor or administrator
- Notifying beneficiaries and creditors
- Inventorying and appraising the property
- Paying debts and taxes
- Distributing the property according to the will
Muniment of Title
Muniment of title is a type of probate that is an alternative to full probate. It is used when the decedent had a will and letters testamentary are not needed, and when there is no outstanding debt owed by the decedent (other that a mortgage on real property).
The main difference between muniment of title and full probate is that muniment of title does not give letters testamentary and it is a much shorter procedure than full probate. There is a hearing, but there is not a need to create and file a list of assets (the inventory), nor is there any need to publish a notice to creditors as there is in full probate.
Because there are no letters testamentary in a muniment of title proceeding, no one has authority to act on behalf of the estate. Muniment of title can be a good option for estates that are smaller or simpler than those that would require full probate. Often this is done if there is just a house that needs to be transferred to the beneficiary.
Affidavit of Heirship
An affidavit of heirship is a document that proves who the legal heirs of a decedent are. This document is typically used when there is no will although it can sometimes be used if the beneficiaries of the will are the same as the heirs would be under Texas law if the person died without a will.
The affidavit of heirship is a sworn, notarized statement by someone that knew the decedent very well. This is usually a family member that is not a direct beneficiary of the estate or a long-time family friend. Among other things, the statement will include the marital history, whether the decedent had any children, and whether the parents are still alive or not.
Usually, there are at least two witnesses that sign the affidavit of heirship, although sometimes title companies like to see more. These are filed in the county property records rather than with the court.
If a person dies without, then there are other options we must look at.
Proceeding to determine heirship
A proceeding to determine heirship is used when there is no will and it is necessary to split up the assets in a way other than by small estate affidavit or affidavit of heirship. This is a process that involves a court determining who the heirs of the decedent were. The court appoints a person called an attorney ad litem to investigate the claims that there are no other heirs than those presented to the court. This attorney is paid by the estate at a rate often set by the court.
A proceeding to determine heirship by itself is often not enough to deal with some assets, so it is often paired with a request for an independent administrator. If appointed, the independent administrator acts like an executor would in an estate will a will. the administrator's role is to gather the assets, pay the valid debts, and distribute any remainder to the heirs.
Small Estate Affidavit
A small estate affidavit is a legal document that can be used to settle the estate of a person who died without a will. This document allows for the transfer of property from the deceased person to their heirs without having to go through the full probate process.
To use a small estate affidavit, the value of the estate must be less than a certain amount. This amount is set by state law and is currently $75,000 in Texas.
Similar to the proceeding to determine heirship, this is filed in the court and eventually there will be an order signed by a judge that says who the decedent's heirs are. The heirs can take that to a bank or file it in the deed records, depending on what asset needs to be taken care of.
Affidavit of Heirship
An affidavit of heirship, described above is more typically used when there is no will and the only asset the decedent owned that needs to be transferred is a house. This is often used where there are no expected bumps to come up in the future where someone would need authority to deal with the estate.
Unlike the small estate affidavit, this is filed in the county property records, similar to where deeds are filed. This gives notice to anyone that looks at the property records that there are heirs and who they are. If you are selling a decedent's property soon, title companies often don't like affidavits of heirship sooner than one year after the person passed - although that really depends on the title company as each have their own internal rules.
It is important to note that an affidavit of heirship does not replace a will. Affidavits of Heirship follow the rules of intestate succession in Texas (the Texas laws that apply that say who inherits when a person does not have a will).
Depending on the estate, whether there is a will or not, whether there were children or not, and whether the person was married or not often depends on what is the best process for dealing with an estate in Texas. If you have had a loved one pass and need help unraveling what's next, give us a call at 214-292-4225.