When one dies, they either have a valid will or they do not. Dying with a will allow your beneficiaries and designees to probate your will. If you do not have a will, it is referred to as dying intestate and your heirs will be forced to have a legal proceeding called a determination of heirship.
Probate in Texas is relatively easy in most cases. This, of course, presumes that there are no people arguing over the will or fighting about any other subject. To handle a probate in Texas, with a properly drafted will, it is a relatively simple process to file for probate, have a very short hearing in court, and have the will admitted to probate. This can be done along with an administration (explained below) and involves minimal expense and time.
A determination of heirship, on the other hand, is more expensive and takes more time. The court is required to appoint an attorney ad litem to search for unknown heirs and to ensure that the documents are drafted appropriately. If there are unknown or incapacitated heirs, then the attorney ad litem is required to represent them in court. This process takes considerably longer and the applicant for the determination of heirship must pay for the attorney ad litem.
An administration occurs when there is a need for the court to appoint someone to deal with the matters of the estate. For example, it could be required because there is a lawsuit involved or because there are several debts to pay. An administration is also helpful if the estate property needs to be managed prior to the time that it can be distributed.
An administration can be either dependent or independent. If it is independent then all that is required is to publish notice in a newspaper and file an inventory of the assets of the estate with the court. Most wills provide that the administration of the estate be independent.
A dependent administration, on the other hand, is much more complicated and expensive. Not only is it necessary to keep detailed records and receipts of every transaction which will later have to be approved by the court, but every major transaction will have to be approved by the court. For example it takes three different court actions to sell real estate. The cost of a dependent administration can increase substantially very quickly. At the end of a dependent administration the estate needs to be closed out with the court and every transaction needs to be balanced to the last penny. The general rule is that if there is no will there will be a dependent administration but 100 percent of the heirs can agree to make it an independent administration assuming the court agrees with them.
There are a few ways to provide for the distribution of property to a person's heirs without going through the formal processes described above. Probating the will as a Muniment Of Title allows you to simply file the will to put it on record and obtain a court order to the effect that is the valid will of the decedent. Typically this is done when there are no debts of the estate and that there is nothing that requires the appointment of an administrator.
A Small Estate Affidavit can also be used if the value of the estate, excluding the homestead, exempt personal property, and non-probate assets, does not exceed $50,000.00. The assets of the estate, excluding the homestead and exempt personal property, must exceed the known liabilities of the estate. I generally advise my clients to check with banks, transfer agents, and title companies (if they are trying to sell real estate) to see if a small estate affidavit will be accepted. If it will, then this will simplify the matter in a very inexpensive way; if it will not then you will have to use one of the other methods mentioned here.
Although I generally advise against it, some people inquire as to whether they can use an "Affidavit of Heirship". As long as all of the holders of property, and the title company that is going to close on the real estate, agree to transfer the property subject to that then there is little harm to come from it. I find that is only occasionally the case.
The personal representative of an estate is called an executor if he or she is named in a will or an administrator is there is no will. The personal representative, whether executor or administrator, is referred to as a "fiduciary." A fiduciary has a heightened responsibility to the estate and must put the estate's interests above his or her own interests. That generally means that it is unwise for the administrator to allow the estate to deal with the administrator's own property. Full disclosure is required and exemplary bookkeeping is necessary in order to be able to provide records of what has been done. Failure to properly serve as a fiduciary can lead to being removed as the personal representative of the estate.
