Texas law offers several options for probating an intestate estate, but a full probate proceeding requires first determining who the heirs are.
Texas law is reasonably flexible when it comes to probating an estate, even if the deceased didn't leave a will. In legal terms, this is called an intestate estate. Texas law determines who receives the deceased’s property when he doesn’t make his wishes known in a will. The rules for probating intestate estates aren't much different from other probate proceedings, but it can require a few extra steps.
Determination of Heirship
When someone dies without a will in Texas, a determination must be made as to who has a right to inherit his assets – his heirs must be identified. To open an intestate probate proceeding, someone must file a petition with the court asking for an order specifying who should inherit the estate. The judge will then hire an attorney ad litem – a person to act on behalf of the heirs – who will investigate and locate all persons who might have a right to inherit from the estate. This isn’t always as easy as it sounds. The deceased might be your parent, and you know you have only one sibling and one living parent, so that should be that. But the court must be satisfied that there are no other family members you don’t know about, such as children or grandchildren of the deceased from other relationships. The attorney ad litem represents the interests of any unknown heirs until they are located or it’s determined that there aren’t any. The court will then issue a Judgment Declaring Heirship, identifying all those who have a right to inherit and in what percentages, according to the Texas law firm of Ford & Bergner.
The Duran Firm of Dallas indicates that if the deceased died without owing any debts, you can use the Judgment Declaring Heirship to simply transfer ownership of the estate’s property under some circumstances.
Once you have a Judgment Declaring Heirship, you can open the probate proceeding. If all heirs are legal adults and they agree, they can give their written consent to an independent administration, which allows the appointment of an administrator to handle probate without court supervision. The law firm of Ostrom Morris in Houston notes that heirs must also agree on who will serve as administrator. This person can then apply to the court for letters of administration, allowing her to oversee the distribution of the estate.
When heirs can’t agree, or if one or more of them are minors, a dependent administration probate proceeding is necessary. The administrator’s duties are the same, but she must ask for and receive court approval for each step she takes during the probate process. She must also secure a surety bond to protect the estate assets in the event she does anything wrong.
Small Estate Options
Texas offers options other than full-blown independent or dependent administrations for smaller intestate estates that aren't complicated. You can bypass a court-ordered determination of heirship and submit an Affidavit of Heirship to the county clerk’s office to transfer ownership of real estate if this is all the deceased owned. The affidavit must explain who the deceased’s heirs are along with details about the estate assets.
You can use a small estate affidavit to transfer money from assets such as bank accounts that don't name beneficiaries if the decedent died intestate and the total value of his property, not including real estate, is $50,000 or less. Submit the affidavit to the court, and if the judge signs off on it, present it to the bank to take possession of the funds. The affidavit must include the details of heirship.
Texas is a community property state, so the deceased's spouse automatically inherits all marital property, according to the legal website Nolo. She also inherits a portion of his separate property – anything he owned that wasn’t acquired during the marriage or that he received by way of inheritance or gift made solely to him. How much of his separate property she receives depends on whether he left any children, siblings or parents. If so, his separate property is divided among them according to the terms and percentages included in the Judgment Declaring Heirship.