Descent and Distribution, Post #2: Probate and Affidavits of Heirship

What if there is no Will?  Is a probate in the County Court always necessary?

We have discussed in prior blogs the results of people dying without a Will as it relates to both “Community Property” and “Separate Property.”  The reality is that many people pass away having never signed a Will.  As outlined in a prior post, the State of Texas writes one for you!  But even with a Will, a formal probate is not always necessary.  In fact, one of the factors which must be proven for a Will to be probated, is that there is a necessity for probate.  Suppose, for example, that Gramps and Granny were married during the Great Depression and had 3 kids.  They never had Wills drawn up.  They worked all their lives for what they had, but neither had any stocks, bonds, IRAs, or bank accounts without designated beneficiaries.  After 65 years of marriage, Gramps died.  Automatically, Granny inherits everything.  The only document likely necessary is a simple “Affidavit of Heirship” which states the facts showing that under Texas law, she is the sole heir.  Likewise, when Granny passes away, their three children will automatically inherit everything, and a simple Affidavit of Heirship can be prepared and filed.  This would not necessarily be true for life insurance proceeds, bank accounts and other types of investment accounts.  Those are “non-probate” assets and are governed by the contract between the owner and the bank, insurance company or brokerage house.  Also, stocks can be difficult to actually transfer, even though they are clearly owned by the children.

If Gramps and Granny had a bank account that did not have a beneficiary, a Determination of Heirship may have to be filed in the County Court to establish legal proof, by Court Order, to a bank, insurance company, or brokerage house who are the rightful heirs to an account. On the other hand, if Gramps and Granny had Wills and died with a bank account that did not have a beneficiary, the Will could be filed for probate.  When a bank, insurance company, or brokerage house needs legal proof, by Court Order, that the person(s) claiming to inherit the account is in fact, the rightful owner, a Will should be offered for probate.  Heirs and interested parties have four years from the date of death to offer the Will for probate.  Probate is much cheaper and easier than a Determination of Heirship so that is why we recommend having a Will – even if the need for probate never arises.

Do you have a Will of a loved one that needs to be probated, a Determination of Heirship that needs to be filed, or an Affidavit of Heirship that needs to be prepared? Give us a call at (254) 300-7909 and we will walk through the options with you and help you determine the best solution for your situation.