Dying Without a Will
Dallas, Texas Probate & Administration Attorneys
Do you have a loved one who has died without a Last Will and Testament in Texas?
Are you worried the state will take everything? Fortunately, the state does not take the assets of someone dying without a will and there is a legal process to transition assets from the deceased person to his/her heirs.
Texas law has a system in place that dictates how the assets of someone dying without a will are distributed upon their passing. When a person dies without a will, they are said to have died “intestate.” Texas law lays out how an estate will be distributed in the Texas probate code when someone dies intestate.
Administering the Estate
When someone dies without a will, there is no person who the decedent nominated as an executor, or person in charge of taking over the estate and dividing it among heirs. In this case, it’s up to the Texas court to appoint an administrator if one is needed. In Texas, when someone dies without a will, the surviving spouse is first in line to be appointed as administrator.
When an estate needs to have an estate administrator appointed, there will be a court hearing to give the court testimony about the need for an administration of the estate. After the court appoints you as estate administrator, you will have 20 days to file an oath of office. Just because you’re “next in line” to administer the estate does not automatically mean a judge will grant you the appointment.
Judges can disqualify anyone they find “unsuitable” in a formal proceeding. Usually, a court finds someone unsuitable if there is credible evidence of serious dishonesty, substance abuse, or mental disability.
By law, you are unqualified to serve if you have ever been convicted of a felony, a misdemeanor involving theft or have ever been declared incapacitated by a court. In addition, if the court finds that you have a conflict of interest (either because the decedent owed you money or you owed the decedent money), it is unlikely you would be appointed.
Letters of Administration
A Letter of Administration is not really a letter. It’s a certificate from a court that the person named on it has been appointed by the court as the legal representative of the estate. Banks, insurance companies, title companies, and others will often ask for a “Letter” before they deal with you regarding the decedent’s assets. You can receive your Letter of Administration on the same day of your court hearing if approved for estate administrator.
Determination of Heirship
The main objective in an application to determine heirship in Texas is to determine who is/are the rightful heir/s of the decedent. When determining heirs in Texas for a decedent who owned real or personal property but died without leaving a will, there are three requirements that must be met to permit the filing of an application to determine heirship:
- The decedent died without leaving a valid will
- The real or personal property is in the state of Texas
- There has been no administration of the estate, or property was omitted from the will
With legal representation of a Texas probate attorney, parties interested in the estate of the decedent may file a proceeding to determine heirship before the court in the county where the real property exists.
Small Estate Affidavit
Small Estate Affidavits (SEAs) can be used to transfer property to a decedent’s heirs under certain circumstances. You must meet all of the following requirements to use SEA to probate an estate in Texas.
- The decedent died without a will
- The decedent left less than $75,000 in property (not including homestead property and exempt property)
- The assets are worth more than the debts
- The only real property owned by the decedent was homestead property, and the real property will be inherited only by the person(s) homesteading with the decedent at the time of death
- You can locate all of the heirs and get them to sign the Small Estate Affidavit
- There is no pending application for appointment of a personal representative, and no personal representative has been appointed by a court
- No administration is needed
Need Help Navigating Probate Without a Will?
When a loved one dies without a will, the process of moving their assets can get a lot more complicated. If there is conflict between heirs, it only makes the process that much more difficult. Getting guidance from an experienced probate and administration attorney can ease your burden, help resolve conflict, and get you through the process quickly.
Frequently Asked Questions
If joint accounts are established with “rights of survivorship,” then they are not subject to the probate process. However, Texas law says that joint accounts are not created with right of survivorship unless the account holders specifically designate it when the account is created.
Under Texas law being the surviving spouse does not mean you can automatically avoid the probate process. Under a traditional deed in Texas, a home does not automatically transfer to the surviving spouse upon death. The same goes for cars, stocks, and other assets.
If the deceased owned any real estate or other property that did not have beneficiaries named, then the Will must be probated in order to transfer titles to lawful heirs.
It’s best to speak to a probate lawyer and ask them. Typically, that lawyer is going to start by examining the Last Will and Testament of the deceased and ascertaining whether the Will allows for “Independent Administration” or administration that is “free from court supervision.” If it does, then it is likely the probate will be a simple process. Even if it does not, however, there are sometimes still options that allow a simplified, independent administration of the estate.
You have four years from the date of the decedent’s death to file the Will for probate. If the Will is never filed, the decedent is treated as having died without a Will, and the heirs determined under Texas law will be entitled to the decedent’s assets.
“Intestate” means that a person died without a valid Will.
If you don’t probate a Will, then certain assets may not be properly transferred and may stay in the name of the deceased. For example, if nothing is done to formally transfer the title from the deceased to the heirs or beneficiaries, then the home will not be able to go up for sale.
A decedent is a legal term for a person who has died. Courts and court documents regularly use this word in place of the name of the person who has died.
A homestead is a place lived in and owned by an individual and not a company. It can be located on owned or leased land, as long as the person that lives in the home owns the structure.
Estate administration is a legal process where an estate is managed (such as settling claims, paying debt, distributing property) after an estate administer is approved by a court.
When someone dies without a Will in Texas, the decedent’s “heirs” are entitled to the property of the estate.