Affidavit of Heirship
An Affidavit of Heirship can transfer the ownership of a Decedent’s property without having to go through the probate process. You can file for an Affidavit of Heirship if: 1) no petition for appointment of a personal representative is pending or has been granted 2) at least 30 days have passed since the decedent’s death, and 3) the decedent’s estate values $50,000 or less, excluding the decedent’s house and other exempt property.
Small Estates Affidavit
You can file a Small Estates Affidavit if it meets the requirements set by the Texas Estates Code. These requirements consist of 1) the decedent passing away without a Will, 2) the entire estate is worth less than $75,000.00, excluding the decedent's house and other exempt property, and 3) the estate has more assets than debts.
Probating the Will
Obtaining Letters of Testamentary
To obtain Letters of Testamentary, you must file an Application to Probate Will with the Probate Court. After a final hearing and taking an oath before a judge, Letters of Testamentary are issued to the Executor allowing them to act on behalf of the Decedent’s Estate. If the Decedent passed away without a Will then other options are available to request the Court issue Letters of Administration.
Determination of Heirship
A Determination of Heirship is necessary when a Decedent dies without a Will. This procedure requires the Court to determine the beneficiaries of the Decedent’s estate per the Texas Estates Code. Once determined, the Applicant can request the Court to issue Letters of Administration.
Obtaining Letters of Administration
Following a Determination of Heirship, the Court will issue Letters of Administration to the applicant. The Applicant is then required to prove 1) the need to administer the estate, 2) they meet the qualifications set forth by the Texas Estates Code, and 3) they agree to forego the duty of administering the estate.
Independent v. Dependent Administration
An Independent Administrator can manage the estate without unnecessary court intervention. A Dependent Administrator requires substantial oversight from the Court. The Administrator must request and receive permission from the Court before making any distributions, selling any property, etc. for the estate.
Qualifying as an Administrator
Requirements under the Estates Code
The Court can grant Letters of Administration to the following persons: 1) a person named as Executor or Administrator in a Will, 2) the surviving spouse of the Decedent, 3) the decedent’s next of kin, 4) a creditor of the decedent, 5) a person of good character, who resides in the county of Decedent’s death who applies for letters.
When a Decedent has created a Trust, the Trustee may require assistance administering the Trust, since the Trustee is required to divide the Trust to the advantage of the beneficiaries. Having a qualified expert distribute the Trust can be a huge factor in maintaining the integrity and functionality of the Trust so that it can be most beneficial to its beneficiaries.
It is sometimes necessary to challenge or dispute the content or validity of a Decedent’s Will. This situation can arise as a result of a variety of reasons, including but not limited to 1) the circumstances of the signing of the Will, 2) a questionable last-minute change to a Will, 3) a change in the decedent’s life (such as marriage, divorce, or loss of a child) that was not accounted for before their death, and 4) health and mental complications of the Decedent.
If a minor child becomes unable to make decisions on their account, due to incapacitation or disability, the Texas court system can issue guardianship rights to act on their behalf. Minor incapacity guardianships, generally speaking, are granted to a trusted family member, friend, and some instances court-appointed to some other person [Guardian ad lietem], the court feels can carry out decisions in the best interest of the child. As a guardian, you may either exercise physical custody of the child or the right to manage their assets as a financial guardian.
Adult Determination of Incapacity
Guardianships can be granted by the Court to help protect adults who are incapable of caring for themselves, otherwise known as the proposed ward. Several qualifications must be met, for example, obtaining a Certificate of Medical Exam from a qualified Doctor, the appointment of a guardian or attorney ad litem to advocate on behalf of the proposed ward, and the posting of a bond by the person/entity that will be acting as Guardian.
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