What Happens When a Loved One Dies Without a Will in Texas?

Losing a loved one is always difficult, and it can be even more overwhelming if they passed away without a will. In Texas, dying without a will is called intestate, and the state’s intestacy laws determine how assets are distributed. Depending on the type and value of the assets, the estate may need to go through probate, but there are also alternative methods that can simplify the process.

If you are navigating the loss of a loved one and need guidance, the Law Office of Laura Vale, PLLC can help. Call 210-588-9881 to speak with an experienced Texas estate attorney today.

Small Estate Affidavit: A Simplified Option

A small estate affidavit allows certain assets to be transferred without formal probate. This can save time and reduce legal costs.

Who Qualifies for a Small Estate Affidavit in Texas?

To use a small estate affidavit, the estate must meet the following requirements:

• The decedent died without a valid will (intestate).
• Total estate value excluding homestead and exempt personal property does not exceed $75,000.
• No probate application has already been filed or is pending.
• All heirs must sign the affidavit and agree to it.
• The decedent’s only real estate is the homestead, and to be eligible, the homestead may only pass to the surviving spouse and minor children.
• A waiting period of 30 days after death has passed to allow creditors to make claims.

Exempt Personal Property in Texas

Texas law allows certain personal property to be exempt from creditors’ claims and not included in the small estate total. Common exempt personal property includes:

• Family heirlooms and furnishings in the decedent’s home.
• Clothing, personal effects, and jewelry for the decedent and their family.
• Certain vehicles, depending on use and value.
• Tools of the trade or professional equipment needed for the decedent’s occupation.
• Certain retirement accounts, life insurance, and benefits payable to designated beneficiaries.

These exemptions mean that even if the total estate is slightly over $75,000, a small estate affidavit may still be an option if the non-exempt assets fall under the threshold.

A properly executed small estate affidavit can help banks, brokerage firms, and other institutions transfer assets quickly, without the time and expense of full probate.

Affidavit of Heirship: What You Need to Know

An affidavit of heirship is another method sometimes used when an individual dies without a will. It is recorded in the deed records and identifies the heirs of the decedent.

Limitations of an Affidavit of Heirship

While an affidavit of heirship can be helpful, it comes with limitations:

• It does not have the legal force of a court order or a deed executed by an administrator.
• Title companies may not accept an affidavit of heirship to transfer title.  
• Its legal validity can be challenged, especially if there are disputes or unknown heirs.

Because of these issues, many title companies and lenders prefer a court-ordered determination of heirship before transferring real estate.

When Probate is Necessary

If the estate cannot qualify for a small estate affidavit or an affidavit of heirship is not sufficient, probate is usually required. Probate ensures that the decedent’s property is distributed legally and debts are paid.

Filing for Determination of Heirship

The first step is to file an action in probate court for a judicial determination of heirship, identifying legal heirs under Texas intestacy law.  Typically, application for administration is filed alongside the application for an heirship determination.

Independent vs. Dependent Administration

Texas law distinguishes between independent and dependent administrations:

• Independent administration may be allowed if:
  • The application is filed within 4 years of death.
  • All heirs consent to the appointment.
  • No heirs are minors.
• Dependent administration is required if these conditions are not met, resulting in more court involvement, filings, and expenses.

Role of Attorney Ad Litem

As part of a determination of heirship, the court appoints an attorney ad litem to:

• Investigate heirship claims and identify potential heirs.
• Verify family history.
• Interview witnesses and report findings to the court.

Proving Heirship

The applicant must provide two disinterested witnesses who can testify about the decedent’s:

• Marital history
• Family history
• Relationship to heirs

If the court is satisfied, an administrator may be appointed to manage the estate.

Duties of an Administrator

An administrator oversees the estate and must:

• Locate, secure, and inventory estate assets.
• Pay debts, taxes, and administration costs.
• Distribute assets to heirs according to the court’s orders.
• File accountings with the court.

If the administrator resides out of state, a resident agent for service of process must also be appointed.  Note that a felony conviction disqualifies an individual from serving as administrator.

Typical Course of Estate Administration

1. Inventory and Appraisal: List and value all estate assets.
2. Notification to Creditors: Allow time for claims against the estate.
3. Payment of Debts: Settle outstanding bills, taxes, and expenses.
4. Distribution of Assets:  Transfer remaining property to heirs.
5. Final Accounting: Close the estate in probate court.

Key Takeaways

• Dying without a will in Texas triggers intestate succession laws.
• A small estate affidavit can simplify transferring personal property under $75,000, but it is not available if the decedent left a valid will.
• An affidavit of heirship may be used for real property but may not guarantee clean title for real estate.
• Probate may be necessary to legally transfer property and resolve disputes.
• The estate administration process can vary depending on whether it is independent or dependent.

If you are facing the loss of a loved one and need help navigating intestate succession or probate in Texas, call the Law Office of Laura Vale, PLLC at 210-588-9881. An experienced estate planning attorney can guide you through the process with confidence and care.