What probate alternatives are available?

While a probate may be necessary to wind up the affairs of a decedent, sometimes a more efficient method is available.  Enter…probate alternatives.

Some probate alternatives available include:

Affidavit of Heirship

  • What is it?  A sworn statement of facts, corroborated by 2 people via additional sworn statements, concerning the decedent’s family history and the identity of his or her heirs filed in the deed records if real property is involved.
  • When is it typically used?  When there is no will, or there is a will whose distributees are the same as the intestate heirs (called an Affidavit of Heirship with Will Attached).
  • This is one of the simplest methods, but is often met with resistance so you must be certain it will be accepted by the holder of property.  If real property is involved, title companies often will not rely on an Affidavit of Heirship unless it has been of record for 5 years.

Small Estate Affidavit

  • What is it?  An affidavit sworn to by 2 witnesses and the distributees listing the assets and liabilities of the estate, the names and addressees of the distributees, and family history filed with the court and Order by the court.
  • When is it typically used?  When there is no will and the entire estate, not including the homestead and exempt personal property (which is listed in the Texas Estates Code) does not exceed $50,000.

Proceedings to Declare Heirship

  • What is it?  A judicial determination of the heirs of a decedent.  An application, notice, attorney ad litem, and hearing are required.
  • When is it typically used?  When…1) there is no will and no other probate alternative is available 2) there is a will, but the will does not entirely dispose of decedent’s assets; or 3) there is a will, but it was not probated within 4 years due to the fault of an applicant.

Other probate alternatives include Informal Family Agreements, Orders of No Administration, and Community Administrations.

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