How to Probate an Estate With No Will in Texas

According to Texas intestacy laws, when someone dies without a valid will, their assets go to their closest relatives. The estate must go through probate, depending upon its size and the type of assets the decedent left. Smaller estates with assets under $75,000 do not have to go through probate; inheritors can file small estate affidavits that state their entitlement to a specific asset.

Probate is the legal recognition of an individual's death in which the court authorizes the management and distribution of a decedent's estate to their heirs or beneficiaries. If the deceased did not leave a will, the estate still goes through the probate process, but this depends on its size, value and the types of assets they had. An heir, spouse, creditor or anyone who believes they have a property right to, or claim against, an estate can file for probate. This usually occurs when a decedent owns real property or financial accounts, and their financial institution has requested Letters Testamentary, or Letters of Administration if there was no will.

During probate, any potential heirs or beneficiaries must show the court that the proposed distribution of the deceased's property is fair and honest. Some of the decedent's estate property may pass to beneficiaries outside of probate, including:

• Life insurance policy: beneficiary contacts company directly about benefits.
• Payable on Death (POD) designation on bank accounts: beneficiary claims the money directly from the bank.
• Named beneficiaries on accounts such as IRA or 401(k).
• Transfer on Death Deed (TODD): allows the transfer of real estate without probate.

An affidavit of heirship establishes title to real estate when the property is the decedent's only estate asset. It is used to transfer the property to their heirs with these requirements:

• Deceased must not have left a will.
• Appointment of a personal representative must not be pending or has already been granted.
• Formal probate administration is not necessary.

The affidavit of heirship details the decedent's facts of heirship and their estate assets. Heirs sign it in front of two witnesses who knew the deceased but have no claim to the estate. It then gets filed with the real property records office of the county clerk where the land is located.

The state of Texas allows inheritors to skip probate if the value of an estate is smaller than a certain amount. The inheritor only has to prepare an affidavit stating their entitlement to a specific asset. When an individual or other entity holding the property receives this document, it will release the asset to that heir. This option is available if there is no will and the estate has a value of $75,000 or less, excluding homestead and exempt properties. The small estate affidavit must include::

• Statement the inheritor has met the conditions above.
• List of the decedent's known assets and debts.
• List of exempt assets.
• Names and contact information of the inheritors and their relationship to the decedent.
• Signatures from the inheritors and two witnesses who do not have a legal right to the property.

The estate administrator lists the decedent's inventory during probate, appraises the property's value and lists creditor claims against the estate. If there are claims, the Texas probate court will order payment by the administrator, who will prepare an accounting for the court's approval. If there are some assets left after the claim payment, the court will order the administrator to distribute what's left.

If the decedent who has not left a will has a spouse or close relatives, state law divides their remaining assets based on the family members' decreasing level of connection. For example, if someone dies leaving:

• A spouse and biological children: The spouse inherits all of the community property, one-third of the personal property and the right to use the real property for life. The children inherit the balance of the estate.

• A spouse and non-biological children: The spouse inherits one-third of the decedent's personal property, with the right to use the real property for life. The children inherit everything else, including one-half of the decedent's community property.

• A spouse, but no descendants or parents: The spouse inherits the entire estate.

• A spouse and parents, but no descendants: The spouse inherits all the decedent's community property, personal property, and the right to use one-half of their real property for life. Their parent or parents inherit the balance.

• A spouse and siblings, but no parents or children: The spouse inherits all the decedent's community property, personal property, and the right to use one-half of their real property for life. Their siblings inherit the balance.

• A spouse and a parent, but no children: The spouse inherits all the decedent's community property, personal property, and the right to use one-half of their real property for life. Their parent or parents inherit the balance.

• Descendants but no spouse: The descendants inherit the entire estate.

The assets of a deceased person who dies without a will and has no living relatives go to the state. However, this is a rarity, as Texas tries to give the decedent's property to anyone who could be a relation.

How much of an inheritance a decedent's children are entitled to when the parent dies without a will depends on several factors, including how many children a decedent has, if they were married and if their surviving spouse is also the parent of the children. Children legally adopted by the decedent receive a share of their property as if they were biological children; however, those they did not legally adopt, such as foster children and stepchildren, do not. If another family adopted the decedent's child, that child can still inherit a share of the estate.

Children conceived by the decedent, but not born before their death, can inherit a share of the estate if they survive for at least 120 hours. Texas law assumes children born to a decedent's wife during their marriage also belong to the deceased so those children receive a share of the estate. Grandchildren receive a share of the estate only if the decedent's children are not alive to receive those assets.