Do All Estates Need to be Probated in Texas: Alternatives to Texas Probate

In most cases, the probate process is necessary to distribute the assets of a person who has passed away. If you die with a will, probate is used to determine the validity of the will and to distribute your assets accordingly. If you die without a will, the court will distribute your assets according to TX intestacy laws. In either case, the probate process is usually necessary.

Luckily, Texas law offers a few alternatives to probate. The following overview is a basic guide to the probate alternatives currently available in Texas. For more information, or answers to specific questions you should consult a probate/estate planning attorney.

Under TX Probate Code §137, a small estate affidavit is available in lieu of probate if the decedent died without a will (died intestate), and the total value of their estate, not counting the value of their homestead or other exempt property, is less than $50,000. This alternative is ideal for decedents whose estates are comprised mostly of their residence and non-probate assets, and whose remaining assets are valued at less than $50,000. It is important to note that small estate affidavits do not apply to real property which is not used as a homestead. This means that title to non-homestead real property cannot be transferred via a small estate affidavit. Instead, a Determination of Heirship proceeding would be needed.

To use the small estate affidavit alternative one must simply file an affidavit in the Probate Court in the county where the decedent lived. To be valid the affidavit must:

• Identify the decedent’s heirs under oath
• Be witnessed by two disinterested individuals who swear that the family history contained in the affidavit is accurate
• Be Sworn to by all beneficiaries

A sample small estate affidavit can be found on page 28 in the Texas Probate Passport, a free informational pamphlet which is published for the public by the Texas Young Lawyers’ Association.

An affidavit of heirship may be used in lieu of probate when the decedent died with a will and the estate consists primarily of real property. When the only reason to probate the will is to clear title to real property, an affidavit may be used to transfer title from the decedent's name to the names of heirs without having to undergo the costly probate process.

To be valid the affidavit must be filed and recorded with the deed records in the county where the decedent's property is located. If the decedent owned real property in more than one county, the affidavit should be filed in each county. Texas law also requires the affidavit be signed by two disinterested witnesses. A disinterested witness is anyone who is very familiar with the decedent but is not a beneficiary of the estate. TX Probate Code §52A provides the requisite format for the affidavit of heirship.

*It is important to note an affidavit of heirship may also be used to clear title to the decedent's motor vehicle.

Muniment of title may be used when the decedent dies with a will but had not debts. Without any debts, the only reason to probate the will is to clear title. In such a case, the full probate process is unnecessary. The probate court need only have a hearing to determine the validity of the will and enter an order permitting the will to be probated as a muniment of title. Once the court enters the order, the beneficiaries may then legally transfer the decedent’s assets into their name.

Under TX Property Code §89C, an estate may be probated as a muniment of title when the following three elements are met:

• Decedent died with a will
• Decedent did not have any debts, except for debts secured by a lien on real estate
• No administrator or executor is necessary

To use this alternative the executor named in the will or any interested party must file an application and schedule a hearing with the probate court in the county where the decedent lived. The contents of the application can be found in TX Property Code §89A.

If the decedent's estate consists only of personal effects such as clothes and furniture, TX law permits the family to informally agree to the distribution of such personal property. If the decedent owned a motor vehicle, an affidavit of heirship may be used to transfer its title to the decedent's heirs.

If the only asset owned by the decedent is their final paycheck and no estate administration is pending, Texas Probate Code §160 provides a quick and easy way for the surviving spouse to collect the decedent’s final paycheck. The surviving spouse need only execute an affidavit which states that no administration is pending and that they are in fact the surviving spouse.

Non-probate assets are assets which do not pass to heirs by a will. They pass to heirs and beneficiaries based on their own individual terms. If a decedent only owns non-probate assets then by definition, no probate is necessary. The assets would simply pass according to their own terms, thereby avoiding the costly and lengthy probate process. The most common non-probate assets include:

• Joint account with a right of survivorship
• Assets with designated beneficiaries such as IRAs and life insurance policies
• Assets owned with a pay-on-death designation
• Assets owned with a transfer-on-death designation
• Real property owned as tenants by the entirety
• Assets held in the decedent’s revocable trust