Is it possible to avoid probate in Texas? Yes. Should you try to avoid probate? Maybe.
There are several alternatives to formal probate in Texas. This blog post discusses five common ways of avoiding probate in Texas: the small estate administration, the affidavit of heirship, the judicial determination of heirship, the probate of a will only as a “muniment of title,” and the use of trusts to transfer assets outside the probate process.
In future posts, I will go into more detail about each of these alternatives. Here is a brief overview of the formal probate alternatives:
Small Estates Administration
The Small Estate Administration, often called the “Small Estate Affidavit,” is a process that avoids formal probate of a will but still requires a trip to the probate court. With this method of avoiding Texas Probate, an heir must file the small estate affidavit with the probate court clerk. After the probate court accepts the affidavit, the clerk files the small estate affidavit, and the judge signs an order approving the small estate affidavit, then the affidavit can be used to distribute the estate to the heirs.
Even though this process is more efficient than probate, heirs must still properly execute the affidavit, get the affidavit filed with the court, and the estate must be eligible for the small estate administration process. As the name would imply, to be eligible, the estate must be… small. The Texas Probate Code says that an estate is small enough for this process if, not including real estate property, the value of the estate assets equals $75,000 or less.
For more on this process, consult the Texas Estates Code Chapter 205, or contact a probate attorney.
Affidavit of Heirship
This is only available when there was no will and when the decedent only left behind real estate. Here, instead of going to probate court, the heirs need only fill out the Affidavit of Heirship form and file it with the county clerk of the county in which the property exists. The form can be found at Texas Estates Code Section 203 (formerly §52A of the Texas Probate Code). Of course, the affidavit must be executed with the appropriate formalities in order to be valid. For example, two “disinterested” witnesses must swear to a specific oath as required by the Probate Code.
Judicial Determination of Heirship
This process is only available when there is no will. At the outset, I should note that this alternative process can be both expensive and lengthy. The process requires at least one hearing in front of the probate judge. Basically, a party will file an application with the court to start the process. Then, the court will hire an independent attorney to essentially track down and represent any unknown heirs. After the independent attorney conducts the investigation, the court will require a hearing at which two disinterested witnesses must testify as to the information in the application. The pro to this process is that when it’s complete, the court’s declaration will give some finality as to who is entitled to a share of the decedent’s estate. The biggest con, as I mentioned, is that the process can be costly and time-consuming.
Muniment of Title
The Muniment of Title procedure is best used when (a) there was a will, and (b) the estate has few assets. This procedure avoids full-blown probate but still requires interaction with the probate court. That is, in this process, a will is actually filed as a public record. However, the will is admitted as muniment of title only. Also, this is primarily used when there are no debts owing by the estate (other than debts secured by liens on real estate) and no other reason to have a full administration of the estate.
This process provides the applicant with the legal paperwork necessary to disburse the estate’s assets without all the formal requirements of full probate. For more information, refer to the Texas Estates Code Section 257 (formerly Texas Probate Code § 89C).
Using Trusts to Avoid Probate
It is possible for an individual to create trusts during his or her lifetime for the purpose of transferring property to beneficiaries outside of the probate process. Trusts created during the individual’s life are called living trusts or inter vivos trusts. In states with more arduous probate processes, inter vivos trusts can be a good way to get property to heirs while minimizing hassle. However, in Texas, it is generally not advisable to use trusts to try to transfer property outside of the probate process.
This is for a couple of reasons. First, the probate process in Texas is relatively hassle-free and inexpensive. Probate in Texas is simply not the dreaded ordeal it is for many other states. Second, even if an individual uses inter vivos trusts, the individual should absolutely still have a will. That is, it is almost impossible to get ALL of the individual’s property into the trust; he may have forgotten about some property, etc. Plus, the individual still needs to name an executor, describe how he wants the estate’s debts to be paid, name guardians for his minor children (if applicable), make specific bequests, and so on. So, since the individual will need a will regardless of the existence of inter vivos trusts, the inter vivos trust just adds a layer of work and expense.
Inter vivos trusts can be useful for other estate planning purposes, but, in Texas, the primary reason for an inter vivos trust should not be to avoid the transfer of property through the probate process.
Isaac Shutt is the Attorney/Owner at Shutt Law Firm PLLC. Visit http://www.shuttlawfirm.com or email ishutt@shuttlawfirm.com. You can also call Mr. Shutt at (214) 302-8197 for more information on the topic discussed in this blog or to discuss a different legal matter. Phone-calls and quick e-mails are always free at Shutt Law Firm PLLC. Please consider the Shutt Law Firm if you’re looking for a Richardson probate lawyer, Richardson wills lawyer, Richardson estate planning attorney, or Richardson guardianship lawyer.
DISCLAIMER: Nothing in this blog post constitutes legal advice. If you have a legal question, you should consult an attorney. Further, nothing in this blog shall be construed to have started an attorney-client relationship. No such relationship exists until you sign an engagement letter with the Firm.
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