Articles Posted in Probate

Among the many tools available to those sorting through a loved one’s estate, the affidavit of heirship can be particularly useful for individuals whose loved ones might not have left behind a will. In Texas, the affidavit of heirship can be an incredibly practical way to transfer property ownership from a decedent to his or her heirs, but the process involves several procedural hoops that are important to keep in mind. At McCulloch & Miller, we help clients deal with these sorts of filings with the ultimate hope of helping them achieve their familial and financial goals.

What is an Affidavit of Heirship?

The affidavit of heirship is a document that a decedent’s heirs can submit to the probate court. It is typically used in two different scenarios: 1) when the decedent did not leave behind a will and 2) when the decedent’s estate did not pass through probate in the first four years after his or her death.

The affidavit allows heirs to receive property that the decedent intended to leave for them. By submitting the affidavit, heirs can essentially ask the court to transfer title of their loved one’s property to their own name(s).

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Both fortunately and unfortunately, the Texas probate process can be very complex. This is fortunate for many clients because it gives them different tools to creatively and efficiently create an estate plan that works for them. It is unfortunate, though, because many of these tools require significant amounts of time and money to implement. One tool that many clients find simpler to utilize is the Small Estate Affidavit, which bypasses some of the more complicated procedural requirements of probating a will and which we will review on today’s blog.

What is the Small Estate Affidavit?

A Small Estate Affidavit is a quick and cost-effective way to move through the probate process. By filling out a Small Estate Affidavit, many individuals finish the entire probate proceedings more efficiently than they would if they were to go through the entire process of a full probate administration.

To access the Small Estate Affidavit, there are many requirements, including: the decedent must have left behind no more than $75,000; the decedent must have died without a will; and the assets in the decedent’s estate must outweigh the debts.

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The Texas probate process is not one to be taken lightly; every procedural step must be done correctly in order to make sure nothing falls through the cracks, and no stone is left unturned. While the process can be lengthy, we at McCulloch & Miller are experts in navigating the probate courts and are pleased to offer our clients everything they need to make sure the process goes as smoothly as possible.

When an individual dies in Texas, that person’s assets and debts get distributed to his or her loved ones, typically in accordance with his or her will or other estate documents. Before this can happen, however, the probate court has to review the person’s will, notify other possible beneficiaries, and decide that the will meets the necessary requirements for the assets to be distributed.

If your loved one has recently passed away and you are looking to begin the probate process, the first thing you need to do is acquire a death certificate on behalf of your loved one. Filing the death certificate with the probate court allows the court to be sure that the individual has died and to make that certificate becomes part of the official court record.

In the past, our blog has covered the complexities of the probate process. Just as we help our clients focus on getting through probate litigation as efficiently as possible, we also help our clients think about how to avoid the process altogether. Many of our clients, in fact, prefer to find a way to transfer their assets directly to their loved ones upon their death instead of drawing out the process through the probate courts. With the right attorney on retainer, you can learn how to avoid probate and make things as easy as possible for your beneficiaries.

There are several key strategies to think about when deciding whether avoiding probate might be right for you:

Joint ownership: if you own property in Texas, consider co-owning the property with an individual that you would like to inherit the land after your death. By structuring the co-ownership correctly, you can arrange for the property to be directly passed to the second individual when you are gone.

The probate process involves many logistical hurdles that often require time and money, and it can be frustrating for those individuals a decedent leaves behind. It is important to recognize, however, that not all assets must go through probate – in fact, there are some assets that are automatically exempt from the process altogether. At McCulloch & Miller, we specialize in separating these two kinds of assets so that families do not have to unnecessarily go through a process that will drain their resources during an already difficult time.

Probate Assets

Put simply, probate assets are those that are governed by the terms of a will. All real property and assets are subject to probate unless they fall under a category that allows them to be exempt from the process. So, for example, if a decedent had a home, a piece of land, or money kept in a non-exempt bank account, those assets will have to go through probate. The probate court learns of the individual’s death, makes sure all potential beneficiaries have received notice of the death, then divides the assets accordingly. This process can take anywhere from a couple of months to a couple of years.

Non-Probate Assets

The following assets avoid probate automatically, just by the nature of the way they are organized:

• Trust assets: in the past, we have reviewed different kinds of trusts on our blog, and exempting assets from probate is another benefit to putting money or property into a trust.
• Property owned in joint tenancy with a right of survivorship: when a piece of property is owned jointly with a right of survivorship, it means that multiple individuals own the property together and that when one person dies, the others automatically own the property. This kind of property, therefore, avoids any kind of probate litigation.
• Insurance policies: life insurance policies, for example, allow a decedent to pass proceeds to a beneficiary as soon as that person dies.
• Transfer-on-death accounts: certain kinds of bank accounts can be designated to transfer to another person the moment the account owner dies. These kinds of accounts, however, have to be designated as “transfer-on-death” before the owner dies.

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As a general rule, a decedent’s assets in Texas must go through the probate process in order for those assets to pass on to the person’s beneficiaries. Because this process can be daunting and time-consuming, clients often come to us for help in figuring out how to avoid probate altogether. By organizing assets and planning ahead, there are ways to prioritize efficiency in passing your estate to your loved ones after your death.

Property

Real property (land, a home, or a building), is typically subject to probate. However, by owning property with another individual, you can automatically pass that property onto the other individual when you die. The property must be owned with the “right of survivorship,” meaning whoever else owns the property upon the decedent’s death has the right to continue owning it if and when they survive another owner.

A “transfer-on-death” deed is another way to pass along real property. This kind of deed must be recorded and processed before the property owner’s death. It essentially means that as soon as a person dies, the property automatically transfers to the beneficiary without any timely litigation.

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For many decedents, the probate process involves a probate court judge reviewing that person’s will, ensuring that the will is valid, and then distributing the person’s assets to his or her beneficiaries. At times, however, the probate court has to decide how to proceed when there is no will in place. Even when there is no will, the decedent’s assets and debts must be somehow distributed; in Texas, there are certain rules that dictate how this process plays out.

Rules of Intestate Succession

You may have heard the term “intestate succession” either on our blog or otherwise. This term refers to the distribution of assets to a decedent’s loved ones according to the state’s rules. Essentially, for a person that dies without a will, there are rules and regulations in place that say where that person’s money, property, and debts will go.

If the decedent has a spouse, that spouse will be first in line to inherit the decedent’s estate. If there are no children or parents, the spouse will, in fact, inherit the entire estate. If, however, the decedent and spouse had children together, the spouse receives 1/3 of the decedent’s personal property and the right to their physical property, while the children inherit everything else.

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