Although in Texas probate can be relatively straight-forward, fast and cheap, who can be blamed for wanting to cut expenses further by doing it themselves?
Can you DIY Probate? Maybe.
Affidavit of Heirship
If all the person left was real property, all the heirs are in agreement about what to do with it and there are two people who will not inherit and knew the person well enough to testify that those are the heirs and the only heirs, those two people can sign an Affidavit of Heirship for recording in the county deed records. Be forewarned: courts will not enforce an Affidavit of Heirship until it has been of record for five years with no one complaining that it is not correct.
Muniment of Title
If the person left a Will, all debts were secured by real property and the only thing wanted is a court order transferring the deed to the people named in the Will, you can try to probate the estate on your own. All the beneficiaries must apply and all must testify in court.
Affidavit of Small Estate
If the person left no Will and no more than a home, up to $60,000 in household goods and personal property and no more than $75,000 in addition – and if all the heirs are known and in agreement, the heirs and two people who will not inherit and can testify that those are the heirs and the only heirs can file a sworn Affidavit of Small Estate, promising to each be responsible for all the bills. A checklist and form are available on the Travis County Probate Court website. www.traviscountytx.gov/probate. The filing fee is a little over $300.
Filling out the form requires knowing the person’s assets with some specificity and also knowing what share each heir should receive under the Texas rules of descent and distribution. Perhaps largely for these reasons, about half of the Affidavits of Small Estate filed in Travis County and about 90% of those filed in our smaller counties are rejected. You may wind up hiring an attorney to make sure that the form is properly completed and efile it for you. Barring complications, this should still be the least expensive form of probate.
These next two are court proceedings. In most Texas counties you must be represented by a lawyer.
Determination of Heirship
When someone dies without a Will, some people prefer a formal probate, a determination of heirship and appointment of an administrator regardless of the size of the estate. Why? In signing the Affidavit of Small Estate each heir – and each witness — promises to pay all the bills of the estate. If one person does not pay his fair share, that does not affect his inheritance. A dependent spouse or dependent children might also prefer a formal probate because the court can then set aside the homestead and up to $60,000 in personal property or set aside a family allowance for up to one year regardless of the debts the person left behind.
If someone dies with a Will, the Will must be probated; an Affidavit of Small Estate cannot be used. The Will must be submitted to the Court with a request that it be “probated,” proved to be the person’s actual Will, properly signed, witnessed and notarized. In filing an Affidavit of Small Estate, heirs are representing themselves. The person who applies to probate a Will is not. That person, normally the executor, would be representing the estate. Only a lawyer is allowed to represent someone other than herself.
Making Probate Cheaper
In Texas, a properly drafted will which appoints an independent executor to serve without bond, contains a residuary clause such that all the person’s property is disposed of and is duly signed and witnessed with a duly signed, witnessed and notarized self-proving affidavit can make for an easy probate. If the person left account and contact information for bank and brokerage accounts, life insurance and retirement accounts, settling the estate can be relatively straightforward. The person may even have recorded a deed causing title to real property to automatically transfer on death and a Department of Motor Vehicles form transferring vehicular title on death. (Read more here about probating your will and determining heirships.)
Perhaps two-thirds of Texans do none of this.
By not signing a proper Will, they may double the cost of settling their estate. They may throw a confusing burden on their grieving family. In addition, their property may not pass the way they intend.
This is especially true in second marriages. While the surviving spouse has the right to live in the home for life, regardless of when it was purchased, the deceased spouse’s interest will ultimately belong to the children. The surviving spouse may also remarry and the new spouse or that spouse’s children may inherit the deceased spouse’s other property. There is no surer recipe for family discord than wills which do not address these possibilities.
Given the relatively low cost of probating a Will in Texas, why risk it?
Estate Planning attorney, Terry Garrett, is a member of the National Academy of Elder Law Attorneys and is active in the Texas and Austin Bar Associations. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.
She assists families of people with special needs, people planning for the retirement years and people administering estates.