- Estate Planning
- Elder Law
- Special Needs Trusts
• • •
• What Happens When a Loved One Dies Without a Will? •
• • •
When an individual dies intestate (without a Will), his or her loved ones are faced with an uncertain path forward. Who inherits the property? How can the property be transferred? What is the first step? The Attorneys at Hayes & Wilson PLLC can assist by providing a clear path forward to wrapping up the deceased’s estate. The Texas Laws of Descent and Distribution direct where the decedent’s property passes upon death. These laws are dependent on who the decedent left behind. For example, if the decedent left behind a surviving spouse and children from a prior marriage, the surviving spouse will inherit a different share of the estate than if all of the decedent’s children were also children of the surviving spouse. These laws differ depending on whether the decedent’s assets are separate property versus community property or real property versus personal property. Therefore, it is crucial to have the guidance of an Attorney in understanding who is entitled to which assets in the decedent’s estate.
Unlike situations where the decedent had a Will, when a loved one dies intestate, there are several different processes that may be appropriate to transfer assets to the decedent’s rightful heirs. For instance, it may be possible to handle the decedent’s affairs through a Small Estate Affidavit or an Affidavit of Heirship. A Small Estate Affidavit is an affidavit that includes the decedent’s family history, heirs, the percentage each heir is entitled to receive under the Texas Laws of Descent and Distribution, and a description of the decedent’s known assets and liabilities. The Small Estate Affidavit is sworn to by two disinterested witnesses and approved by the Judge. To be eligible for a Small Estate Affidavit, the value of the decedent’s estate (excluding the decedent’s homestead and exempt property) cannot exceed $75,000 and the decedent’s assets cannot exceed the decedent’s liabilities. An Affidavit of Heirship also includes the decedent’s family history, heirs, the percentage that each heir is entitled to receive, and a sworn statement by two disinterested witnesses. However, an Affidavit of Heirship is not filed with the court. Therefore, although it is easier to complete and it does not need to be signed by a Judge, it does not have as much authority as a Small Estate Affidavit when used to transfer assets.
While both the Small Estate Affidavit and Affidavit of Heirship are useful tools in transferring a decedent’s property, it is often necessary to petition the Court for a Determination of Heirship and have a personal representative appointed to administer the estate. A Determination of Heirship is a process where the court orders who the decedent’s rightful heirs are. This is done by bringing two disinterested witnesses to court to give testimony. In addition, the court will appoint an Attorney Ad Litem to represent any unknown heirs. This process is the most thorough and holds the most weight when trying to transfer property. Usually, an Administrator is appointed for the estate at the same court hearing as the Determination of Heirship. The Administrator’s role is similar to that of an Executor. He or she is responsible for gathering the decedent’s assets, paying debts, completing all of the statutory notice requirements, filing an inventory, and distributing the assets of the estate.
There are several questions to consider when trying to determine which process to use:
Our Attorneys are happy to work with you to determine the best path forward by carefully analyzing the characteristics of the decedent’s assets as well as any other specific nuances that may require a certain process. Contact us to set up a consultation.