PROBATE AND ADMINISTRATION
The Affidavit of Heirship is generally used when someone died without a will and left only real estate. Instead of going through the probate process to have the title to the property transferred to the decedent's heirs, the heirs can instead file the Affidavit of Heirship in the deed records of the county in which any piece of real estate owned by the decedent lies.
According to the provisions of the Estates Code, the affidavit must be signed by two disinterested witnesses (i.e. two people who knew the decedent and his family history but do not stand to gain anything financially from the estate). In the affidavit, those witnesses must swear under oath to each of the following issues:
Once the affidavit has been signed and recorded in the deed records of the county, it has the effect of linking the chain of title in the decedent’s real estate to his heirs. At that point, most title companies and real estate companies will allow the heirs to sell the property.
The Small Estate Affidavit is similar to the Affidavit of Heirship. However, the Small Estate Affidavit is filed with the probate court in the county in which the decedent resided at the time of his death or any county in which he owned real estate. The affidavit must include the same information that was required in the Affidavit of Heirship, but in addition, it must be signed by all of the decedent's heirs as well as two disinterested witnesses.
Once the affidavit is complete, it is filed with the probate court, which will issue an order approving the affidavit and ordering that all properties owned by the decedent be transferred pursuant to the affidavit.
While the Small Estate Affidavit is an effective alternative to probate, it is only available for estates having less than $50,000 in assets, exclusive of real estate. Like some other methods of administering an estate that are very unique to Texas, the Small Estate Affidavit sometimes meets resistance from banks and financial institutions that are not familiar with Texas probate laws. As a result, the use of the Small Estate Affidavit to attempt to claim bank accounts, brokerage accounts, and other financial accounts can sometimes fail, with the bank or institution requiring a full probate of the estate.
When someone dies without leaving a will, the court can conduct a formal determination of heirship. During this process, the court will make a formal declaration as to the identity of the decedent's heirs. Pursuant to that declaration of the heirs, the decedent's property can be divided and distributed among the heirs.
The benefit of the determination of heirship relates to the fact that a court has made a formal judgment finding the identity of the decedent's heirs. From that point forward, any attempts to include someone else as an heir of the estate will be void, unless the judgment can be modified by the court. This creates a finality to the finding of the heirs.
Conversely, however, the determination of heirship proceeding can be expensive and somewhat time-consuming. The determination requires the filing of an application with the probate court, and the court is then required to appoint an independent attorney to investigate the identity of the heirs. Once that attorney has reported his findings to the probate court, the court will schedule a hearing to issue the determination as to the identity of the heirs. At that hearing, the court will require two disinterested witnesses to testify to essentially the same facts required for the Affidavit of Heirship.
The determination of heirship is a mechanism used many times in conjunction with the dependent administration of an estate of someone who died without a will. However, the determination of heirship can also be completed independently of any probate process. When it is, the assets are transferred pursuant to the court's order determining the heirs, and there will be no executor or administrator of the estate.
Texas probate is notably simpler than many other states, thanks to something called the “independent administration” of estates. Using this process, most Texas executors wrap up estates with very little court supervision.
When Probate Isn’t Necessary
Assets that can be transferred to the new owner without probate include:
Muniment of Title
The “muniment of title” process is a relatively simple and inexpensive way to transfer estate assets when there’s a will. (Tex. Estates Code Ann. § 257.001) It can be used when:
To get the process started, someone files the will and a request to probate the will as a muniment of title with the probate court. If the court decides there’s no need for probate administration, it admits the will into probate as a muniment, or evidence, of title to the estate assets. Essentially, the will serves as the document that transfers the assets to the persons or entities named in the will to inherit them. The court doesn’t appoint an executor or administrator. The person who requested probate as a muniment of title, however, is required to file an affidavit (sworn statement) with the court within six months, stating that the terms of the will have been carried out (or, if some terms haven’t been carried out, which ones).