Discover Streamlined Probate Alternatives
A streamlined, simple probate alternative may be for you if the estate is a small one, or if there is only real property (real estate) or vehicles. These less expensive actions allow for disposition and distribution of assets without a full-blown probate.
Check with an Expert Probate Lawyer First
It is absolutely critical that you discuss this with your probate attorney and that either you or your probate attorney contact any banks, title companies, mortgage companies or other offices ahead of time. Some of these will accept simple probate alternatives and some will refuse. Some actions are only available in Texas, and other states do not recognize them.
It is best to have a plan to meet your specific requirements from the outset. This is particularly true if you are dealing with companies who operate outside of Texas. These companies tend to be more resistant.
Affidavit of Heirship
One simple probate action to distribute real estate is an Affidavit of Heirship. If someone dies without a will, leaving only real estate, an Affidavit of Heirship is a streamlined method to change the title on real estate. Instead of going through the probate process to have 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.
The Texas Probate Code specifies the requirements for this simple probate alternative. The Affidavit must be signed by two disinterested witnesses (two people who knew the Deceased and his family history but do not stand to inherit from the estate). These witnesses swear to the following:
- The witness does not gain financially
- Personally knew the Deceased
- Date and County of death
- Names of closest family members and heirs
- The deceased did not owe any debts at the time of death
Once the Affidavit is signed, it is recorded in the deed records of the County where the property is located. This record links the chain of title for the property to the heirs. At that point, many title companies and real estate companies will allow the heirs to sell the property.
While an Affidavit of Heirship is a simple probate action, and it streamlines the process, be aware that some title companies and real estate companies will not accept it. Your probate lawyer will contact the appropriate people to make sure it will be honored before you do it.
Small Estate Affidavit
Under Texas statute, where an estate is valued at less than $50,000, an interested party may consider a Small Estate Affidavit. Thirty (30) days after the death of the decedent, your Probate Lawyer can file an affidavit with the clerk of the court having jurisdiction and venue over the estate. After the affidavit has been approved by the court, the affidavit may be used to claim assets and collect debts owed to the deceased.
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 property 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 resistence 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.
Muniment of Title
If there is a will disposing of real property, such as a house or land, it may be possible to present the will to the court and request that it be probated as a Muniment of Title. In basic terms, this simple probate mechanism gives the title for the property to the person or persons who got it in the will. There is no formal probate or appointment of an executor.
- In order to qualify for a muniment of title:
- the will must dispose of Texas property
- the court must have jurisdiction over the estate
- there must be no debts of the estate other than those secured by the real estate
- here is no necessity to probate the will other than to dispose of the property in question