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 in Texas? Maybe.
Texas probate with a will
If the person left a Will, all debts were secured by real property and all that is wanted is a court order transferring the deed to named beneficiary or beneficiaries, you can try to probate the estate on your own. All the beneficiaries must apply and all must testify in court.
Texas probate without a will
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 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.traviscountx.gov/probate. The filing fee is a little over $300.
Completing the Affidavit of Small Estate Form
Filling out the Affidavit of Small Estate 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 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.
Some people prefer a formal probate, a determination of heirship and appointment of an administrator. Why? In signing the Affidavit of Small Estate each heir promises to pay all the bills of the estate. If one heir 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 probated. While 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. (Should you have a will?)
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 property. There is no surer recipe for family discord than wills which do not address these possibilities.
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.