Probate Without A Will

If you know that the deceased had a will but, the original of that Will cannot be found (after conducting the type of search noted in the “Steps for the Executor” portion of this website) you still may be able to avoid property passing to heirs by the Statutes of Descent.

A copy of the Will can be admitted to Probate in the place of the original.  This is not as easy and routine a process as the one that ensues when an original will is offered for Probate.  The process is somewhat more difficult, therefore there are more attorney’s fees involved.  Exactly how much more you will spend in attorney’s fees will depend on the facts of the case.

Witnesses that have knowledge of the will and can testify to the execution of the Will by the Decedent will have to be located.  These witnesses will have to be interviewed and prepared for a hearing in the Probate Court.  These witnesses and any other relevant evidence that can be gathered will have to be presented to the probate court to get a copy of a Will admitted to Probate.  It is helpful to have an explanation to offer the court as to what happened or is believed to have happened to the original will.

Even if no copy of the will can be found a will can still be admitted to probate.  This can be very difficult.  However, it requires much of the same evidence that is required to admit a copy of a will in place of an original.  The testimony of witnesses that are familiar with the testator, the contents of the will, and the execution of the will can be enough to get a will admitted into probate.  The evidence must be somewhat detailed and you will really want a good explanation (fire, a move, document theft) for why there is neither an original will nor a copy.

Where a person dies without leaving a will his or her property will pass to heirs according to the rules set forth in Texas Statutes of Decent.  However, for these rules to take effect and in order for property to legally pass to heirs, who the heirs are must legally be determined.  There will have to be a Proceeding in court to gain the authority to take control of property.  There are several processes by which to pass the property of someone who died without a will to the heirs at law.

An Affidavit of Heirship can be used to establish title to estate property where the sole asset is real property.  In order to file an Affidavit of Heirship, the following requirements must be met:

An Affidavit of Heirship is prepared that details the decedent’s heirship facts and the assets of the estate.  The Affidavit is then signed before a notary public by two disinterested witnesses.  The Affidavit is then filed in the Real Property Records on file with the County Clerk’s office.  The court does not appoint an administrator in this type of proceeding because no formal administration is necessary.

WARNING.  Some financial institutions will not release control of accounts without receiving “Letters Testamentary” or “Letters of Administration.” Check with your loved one’s banks, etc. and see if they will require the Letters.  If they do, you will want to pursue an Administration so that you will have the Letters necessary to take control of the accounts.  If your loved one has significant accounts with financial institutions, it may be best to pursue an Administration from the beginning.

A Small Estate Affidavit is used to collect a small amount of money owed to the estate, including a small amount of money in a bank account.  A Small Estate Affidavit may also be used to transfer title to real property that still qualifies as a homestead upon the Death of the decedent.  In order for the court to approve such an Affidavit, the following requirements must be met:

A Small Estate Affidavit is prepared that details the decedent’s heirship facts and the assets of the estate.  The Affidavit is then signed before a notary public by all of the heirs of the estate and two disinterested witnesses.  The Affidavit is then filed with the court which either approves or denies the Affidavit.  If approved, the Court will issue an Order Approving Small Estate Affidavit.  The Order constitutes authority for the bank to transfer the money to the distributees named in the Affidavit.

The court does not appoint an administrator in this type of proceeding because no formal administration is necessary.  Some financial institutions, however, may insist on only releasing estate funds to a court-appointed executor or administrator.   Check with the financial institutions in advance.  If this occurs, you will want to ask the court for an administration.

A Determination of Heirship is used to establish title to estate property where the assets include real and/or personal property and the estate does not qualify for a small estate affidavit.  Also used when the all of the heirs of the estate cannot or will not sign a small estate affidavit.  In order for the court to issue a Judgment Declaring Heirship, the following requirements must be met:

An Application for Determination of Heirship is filed with the court.  The court then appoints an attorney ad litem for unknown heirs who will investigate the heirship facts of the decedent.  After a hearing, the court will issue a Judgment Declaring Heirship which names the heirs of the estate.  The Judgment Declaring Heirship can then be used to prove title to estate property.  The court does not appoint an administrator in this type of proceeding because no formal administration is necessary.  Some financial institutions, however, may insist on only releasing estate funds to a court-appointed executor or administrator.  Check with the decedent’s financial institutions in advance.  If the institutions will require either Letters Testamentary or Letters of Administration, you will want to ask the court for an administration.

When there is a need for an administration and if all of the heirs to the estate agree to an independent administration and to the person to serve as administrator the court can create an independent administration.  This is what is needed when financial institutions will not release assets of the estate without Letters of Administration.  In order for the court to create an independent administration, the following requirements must be met:

An Application for Letters of Administration Pursuant to Section 145 of the Texas Probate code is filed with the court.  All of the heirs of the estate must either sign on to the Application or sign a consent form.  The court may appoint an attorney ad litem for unknown heirs who will investigate the heirship facts of the decedent.  At the hearing, the court will determine if there is a need for an administration and whether an independent administration is in the best interest of the estate.  If so, the Court will appoint an Independent Administrator of the Estate and issue Letters of Administration to the Administrator.  The Administrator will be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the heirs of the estate in accordance with the default inheritance rules.

If there is a necessity for an administration and the heirs of the estate will not or cannot agree to an independent administration and/or the heirs cannot agree about a person to serve as administrator.  This is frequently the case when the beneficiaries are hostile towards one another or when one of the beneficiaries is a minor child.  In order for the court to create an independent administration, the following requirements must be met:

An Application for Letters of Administration is filed with the court.  At the hearing, the court will determine if there is a need for an administration.  If so, the Court will appoint an Administrator of the Estate and issue Letters of Administration to the Administrator.  The Administrator will be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the heirs of the estate in accordance with the default inheritance rules.  The court closely supervises the administration of the estate. Bills cannot be paid and assets cannot be sold or distributed without the approval of the court. Periodic accountings must also be prepared to advise the court of the status of the estate.  The amount of attorney time in this type of proceeding is generally a function of the number of creditors of the estate, the amount and character of the assets in the estate, and the degree of disharmony amongst the heirs.