Dying Without a Will: What Are the Options Moving Forward?
If you own property, your estate will most always be better handled if you have a Will or, better yet, a Living Trust.
Even though it’s something many of us may not want to think about, having an “estate plan” in place (whether it be a Will, a Living Trust, etc…) can save our loved ones from having to handle complications that can be avoided if we were to plan ahead on the front-end.
That being said, sometimes our loved one waits. Or just never gets around to getting that Will drafted.
So if that’s the case, and a loved one has died without a Will, you need to know your best options.
For most estates without Wills, the best answer is opening an administration and a formal declaration of heirship.
Although more expensive than probating a Will, this proceeding is not necessarily exceedingly expensive unless there is a non-cooperative family member.
Unfortunately, if there’s a non-cooperative family member, the administration of the estate will be court supervised and will be significantly more expensive.
The goal is for the family to reach agreement as to who will administer the estate and agree they don’t have to be bonded or court supervised.
Because administrations of estates can be expensive, some are eager to look for alternatives. In most cases, the alternative doesn’t solve the problem, but here are some things to consider:
Affidavit of Heirship for a Motor Vehicle: If the only assets in the decedent’s name are vehicle titles, the Department of Motor Vehicles of the State of Texas allows the transfer by an Affidavit of Heirship, assuming there is no Will. The form can be found at the Texas DMV website.
A Small Estate Affidavit: A small estate affidavit is possible, but only in limited circumstances.
First, the estate must be small, less than $75,000 (but this doesn’t include a homestead to be transferred to a spouse).
The most common disqualifier is that the property to be transferred (the decedent’s homestead or any other property) is passing to their children. A small estate affidavit will be rejected if there is real estate passing to anyone other than a surviving spouse.
In most circumstances, when reviewed by an attorney, the circumstances do not fit for a small estate affidavit.
As an alternative to full heirship, the small estate laws of the State of Texas generally have failed to help families avoid the costs of estate administration, and I hope the Legislature looks at reforming this process.
An Affidavit of Heirship: When there is only real estate to be transferred, it is often suggested by uninformed persons, including non-probate attorneys, that an Affidavit of Heirship can be used. The short answer is that an Affidavit of Heirship can be either accepted or rejected by a buyer, a title company, a bank, or an insurance company without any reason.
That’s because an Affidavit of Heirship does not establish ownership in the heirs, it is only an affidavit asserting ownership. Since the beauty of the affidavit is, for lack of a better term, in the eyes of the beholder, there is no guarantee that an Affidavit of Heirship will work in any circumstance.
Is There Even a Probate Estate?
It’s possible that a person dies with assets, but there be no asset that need to go through probate.
Although it is usually not a good planning method, some people are fortunate in having a non-probate estate because they have moved all of their assets to transfer on death accounts, or their equivalent.
If there are no assets left in the name of the decedent after beneficiary designations, transfer on death, payable on death, and other similar designations are considered, there is simply no need for probate.
If this is the case, then you are one of the lucky few.
If you are the more common situation where your loved one has died without a Will, the shortcut procedures won’t work, and opening an administration of an estate is necessary, the heirs should first come together and discuss their options, try to jointly agree how to move forward, and hire one attorney if at all possible.
Find a lawyer who's law practice focuses solely on estate planning and probate. Someone who will listen, give you options, and help you navigate the process in a smooth fashion.
In other words, someone who knows not only how to move the case through the court system but one that you know you can call on as “your” lawyer, if needed.
In my experience it’s like finding an honest car mechanic, contractor, or other skilled tradesmen – it’s always good to develop that relationship in case you need their services (or advice) down the road.
Bottom line: If disputes can be eliminated, and agreements can be reached as to who will administer the estate, the lack of a Will does not necessarily mean that there will be expensive complexities that all of us hope to avoid while we deal with the things life inevitably throws at us at seemingly the most inopportune times.