PROBATE 

What happens to your estate when you die?

Your will should be filed with the Probate Court along with an application for probate within four years of your death.  The application must be posted for ten days before a hearing can be held.  Your executor will be appointed at the hearing.  In most cases, letters testamentary (the official document from the Clerk of the Court stating that the executor has authority to act on behalf of the estate) will be issued once the executor is appointed and takes his/her oath of office. 

Your executor will be responsible for publishing a notice to creditors, notifying any known creditors, notifying the beneficiaries, and filing an inventory with the Court.  He or she will also be responsible for paying any proper claims or debts, filing and paying any income and/or estate taxes that are due, and, after fully administering the estate, distributing the remaining assets to the beneficiaries.   

What happens if you do not have a will? 

Your estate goes to your heirs at law as defined in the Texas Estates Code.  It may be necessary for the Probate Court to declare who are your heirs.  This process requires the appointment of an attorney ad litem to represent the unknown heirs and the testimony of two disinterested witnesses regarding your family history.  If there is a necessity for administration of your estate, a dependent administration may also be required which is subject to close supervision by the Court.  This is a more expensive and time-consuming process than that of probating a will which provides for an independent administration.

You may be able to transfer title to real property by recording affidavits of heirship signed by an heir and two disinterested witnesses. Or, if the value of the estate, not including the homestead and exempt property is less than $75,000 you may be able to submit a small estate affidavit to the court for approval.