No Will – Dallas Intestate
There are times when a person has passed away without a will. In Texas law, this is known as dying intestate. When this happens, heirs will need to follow a legal process called the Determination of Heirship to determine the distribution of real property and estate of the decedent. It is of utmost importance to have an attorney to guide all possible heirs through the legal process.
WHO IS INVOLVED IN INTESTATE ADMINISTRATION?
The heirs are involved in the entire process. Typically, this includes the spouse, living children, or other close blood relatives.
THE FIRST STEP TO INTESTATE ADMINISTRATION
When there is no will, the first step is to examine the estate assets and look for beneficiary designations and survivorships. Under Texas Probate code, joint accounts, annuities, and life insurances are not subject to the probate court. You will also need to examine the debts of the estate and determine if it is solvent.
THE SECOND STEP TO INTESTATE ADMINISTRATION
The next step for a Dallas intestate administration is to assess if the family is able and willing to work with an attorney and each other during the proceedings. There are many different options to determine heirship during intestate.
COURT-CREATED INDEPENDENT ADMINISTRATION
This is when the Dallas Probate Court appoints an independent administrator that all estate distributees can agree on to complete the process of determining heirs.
COURT-CREATED DEPENDENT ADMINISTRATION
This is when the Dallas Probate Court oversees the process because the family can not agree to pick an administrator.
CAN I JUST USE AN AFFIDAVIT OF HEIRSHIP?
An Affidavit of Heirship is not really an authorized probate procedure. It will work when it works. How do you know when it will work? You don’t. That’s the problem. The Texas Estate Code only treats these affidavits as evidence of the heirs, not as conclusive proof. So, should a buyer be willing to pay full fair market value for a property when the right of the sellers to transfer the property are not well proven? That would be a big risk. So, if someone will buy your property relying on an affidavit of heirship, and pay fair value, then an affidavit works. If not, it doesn’t. Only a declaration of heirship can be guaranteed to work and it is why Pyke & Associates, P.C. rarely recommends reliance on an affidavit of heirship.
WE HAVE A “SMALL” ESTATE, CAN I USE A SMALL ESTATE AFFIDAVIT?
A small estate affidavit is not as good as a declaration of heirship, but the estate can’t be insolvent (assets re less than the known estate debts) and the value of the estate must be less than $50,000. It can be used to transfer the title of the real property if the real property is the decedent’s homestead and the only real property of the estate. However, Small Estate Affidavits are not easy to prepare, require an attorney, and are still often rejected by the Courts. For that reason, again, it is not a procedure Pyke & Associates, P.C. usually recommends.