In a recent article we discussed what the probate process is in Texas when a loved one (decedent) passes away. During probate, a court reviews the decedent’s Will, authenticates it and admits it to probate. In many cases, the court appoints an Executor or an Administrator to administer the estate, and issues Letters Testamentary or Letters of Administration to the Executor or Administrator empowering her to represent the estate. Sometimes the decedent has real property, perhaps in Pflugerville or Round Rock, which needs to be distributed. In this article we will discuss how real property is handled during the probate process in Texas as well as alternatives to probate for real property. If you have questions about real property in probate or need help probating a Texas Will, contact Austin probate lawyer Farren Smith for an initial consultation.
Definition of Probate in Texas
Probate is essentially the orderly process of winding up the business affairs of a person who has passed away. The probate process is handled in court. Often family members hire a Texas probate attorney to help them with the details and paperwork of probating a Will.
Sometimes real estate can be part of the decedent’s estate. The decedent may leave the real property to a specified beneficiary in the Will, or the land may need to be sold to pay creditors. In the probate process, the court issues Letters Testamentary to the Executor directing her as to how to administer and distribute the decedent’s assets among beneficiaries, creditors and any others who have an interest in the property.
Alternatives to Probate
There are several alternatives to probate for handling specialized situations. An Austin probate attorney can help you decide which process is best for your situation and effectively transfer the loved one’s real estate. In this section we will discuss:
- Probate as a Muniment of Title only;
- Small Estate Affidavits; and
- Affidavits of Heirship.
Muniments of Title
If the decedent had a Will but did not have any creditors whose loan secured real property he owned, the family can probate the Will as a Muniment of Title. This process is simpler than the probate process.
Similar to the probate process, once the court determines the validity of the Will, the court will have a hearing on the Muniment of Title. A court can then approve a Will as a Muniment of Title to pass title of the real property to beneficiaries, however there will be no administration of the estate.
Small Estate Affidavits
If the decedent died without a Will (intestate), and the total value of the estate not including the decedent’s homestead is less than $50,000, the family can file a Small Affidavit in the probate court. This process is more economical than the probate process. However there are many limitations.
Affidavits of Heirship
An Affidavit of Heirship is usually used with someone dies without a Will and the estate consists primarily of real property titled in his name. An Affidavit of Heirship vests defeasible title from the decedent’s name into the names of the heirs without having to go through the probate process. The family (or their attorney) files the Affidavit of Heirship in the deed records of the county where the real property is located. The Affidavit creates a clean chain of title transferring the real estate to the decedent’s heirs.
The Texas Probate Code contains certain legal requirements for Affidavits of Heirship. The family may wish to seek the advice of a Texas probate attorney to ensure that all of the requirements are met and that the real estate title passes smoothly. Contact our offices today to speak with an experienced attorney.
- Tex. Prob. Code