Arlington Probate Attorney
Probate Without a Will in Texas
The Texas Probate Code
Provisions in the Texas Probate Code determine who will inherit, and the portion of the estate an heir will receive. Neither the attorneys, nor the judge, have the power to cause or create an outcome different from that which the Texas Statutes expressly provide. This is why a well drafted Will is so important if an individual wants to assure his estate is administered in accordance with his intent. Without a Will the heirs of the decedent will inherit exactly what the law dictates.
When there is no Will it is necessary to obtain a judicial determination or ruling declaring the true heirs of the estate. This Heirship Proceeding will involve the appointment of an attorney to investigate the heirship facts and help assure the court that all of the heirs listed in the Application are the true and rightful heirs of the Estate. This “Attorney Ad Litem” is appointed to represent missing and unknown heirs and heirs whose whereabouts are unknown. This investigation and formal judicial determination will help protect the true heirs from possible attacks by other persons who may in the future claim to be heirs.
As you can probably imagine, the filing of the Application to Determine Heirship, the services of the Attorney Ad Litem, and the appearance of your attorney at the court hearing are going to entail costs above and beyond that which would have been born had an experienced attorney properly drafted a Will that would have disposed of the assets of the Deceased in a way in which he had desired. Attorney Thomas D. Reino can draft a Will that will dispose of your assets in the way you wish, and not allow your assets to be distributed in accordance with State Law.
Once the Heirship Proceeding is completed, the Probate Court may need to appoint an Administrator of the Estate. If the heirs can agree on the administrator and agree to an Independent Administration and the waiving of a bond, the estate can typically be administered with less time and expense. However, when the heirs cannot agree, the administration may have to proceed as a Dependent Administration which will require the administrator to post a bond, and the estate will be closely monitored by the court.
This type of administration will require more work on the part of the attorney and more expense to the estate. Some heirs cannot get along with each other, which is unfortunate because the estate incurs greater expense of administration and that means less of the estate goes to the heirs. Again, this can all be avoided if the Decedent had gone to an experienced attorney to have a well drafted Will prepared. A Will that would designate the executor of the estate, waive a bond, call for an Independent Administration and dispose of the assets in the way the testator desired and not according the laws of the State of Texas; sometimes leaving assets to the wrong individuals and not leaving property to the correct beneficiaries to whom the testator wanted to leave the estate property. Thomas Reino can assist you in preparing a well drafted Will, which can save much time and expense, and you will have your estate administered in accordance with your wishes.
Small Estate Affidavit
In cases where the decedent died “intestate” (without a valid will) the Small Estate Affidavit may in some cases be utilized. A small estate affidavit usually works well with some assets, savings bonds, bank accounts and the homestead, but it is usually difficult, if not impossible, to use the affidavit to transfer title to publicly traded stocks and bonds, mutual funds, partnership accounts and brokerage accounts. Most of these types of assets are administered by people and entities that are accustomed to working with Letters Testamentary or Letters of Administration (the documents granting power to an executor or administrator). Rarely do the institutions deal with Small Estate Affidavits regarding the transfer of title to those assets. In these situations the formal administration of the estate is necessary.
Call Tom Reino if you have questions about probating a will in Texas.