When A Probate Is Not The Answer

Sometimes a full-blown probate proceeding just isn’t necessary for an estate. Texas law provides several palatable alternatives for specific circumstances.

If all the heirs need to do is transfer a few titles, an Affidavit of Heirship may be the answer. There is a statutory form. Usually the Affidavit has to be on file in the County Deed Records more than 5 years, although title companies and transfer agents can proceed with a transfer based on an Affidavit that is filed for a shorter time.

The Small Estate Affidavit can be used when no one has filed a petition for the appointment of an executor or administrator, the value of the entire estate (excluding a homestead and any exempt property) is $50,000 or less, and more than 30 days have passed since the death. This is an application that is filed with the Court and sworn to by 2 disinterested people. The court has to approve it.
When a person dies without a will, then the court can hold a hearing to determine the heirs. This is known as a Proceeding to Determine Heirship. The Court must appoint an attorney ad litem to represent the interests of the unknown heirs, and may also appoint an attorney to represent the interests of living heirs who can’t be found or are incapacitated. The Court must hold a hearing and receive testimony by at least 2 disinterested people.

An Application for Order of No Administration is available when the decedent is surviving by a spouse or minor child, the value of the estate is less than the family allowance, and the court establishes a family allowance. It requires a court hearing. Note that this should not be confused with a probate action where the Court finds no necessity for administration (Muniment of Title).

A popular alternative is an Informal Family Settlement Agreement, where everyone who has a “pecuniary” interest in the estate joins into a settlement. Depending on the circumstances, this may result in avoiding probate altogether.

None of the foregoing alternatives should be attempted without consulting with an attorney. Each alternative has requirements that are peculiar to it under the law.

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The information contained in this article is general information only and does not constitute legal advice.