Here, learn about ways a deceased person's property may pass on to their heirs without the need for a formal court proceeding, like:
Some of the deceased's ("decedent's") property may pass without the need for a formal probate process. Methods include:
Chapter 205 of the Texas Estates Code lets the heirs at law (distributees) of someone who died intestate (that is, died without a will) file a small estate affidavit with the court as an alternative to going through the probate process.
For the distributees to file the small estate affidavit, the following must be true about the estate:
It must include a list of all known estate assets and liabilities, including which assets are exempt, and contain the relevant family history that shows each person’s right as an estate heir to receive estate assets.
The small estate affidavit must be sworn to by two disinterested witnesses (that is, people over age 18 who are not heirs to the estate). Each distributee of the estate who has legal capacity must sign as well.
The small estate affidavit will only transfer title of the deceased person's homestead— and only to a surviving spouse or minor child. Any other real property owned by the decedent cannot be transferred by using or filing a small estate affidavit.
To transfer the decedent’s homestead to the distributees, the real property— and a proper legal description of it— must be listed in the affidavit among the deceased's assets.
Once the judge approves the small estate affidavit, a certified copy of the affidavit and the court order approving it must be filed (that is, "recorded") with the real property records of the county where the real property is located.
The judge must examine the small estate affidavit. They may approve it if they decide that it meets the legal standards set for small estate affidavits.
A certified copy must go to each person who:
File a certified copy of the affidavit and order of approval in the county property records.
An application to determine heirship asks a court to decide who should get the deceased's property. Like an affidavit of heirship, it may be used when there is no will, or the property was left out of the will. Unlike an affidavit of heirship, it requires a court proceeding and attorney representation.
An affidavit of heirship can be used when someone dies without a will, and the estate consists mostly of real property titled in the deceased’s name. It is an affidavit used to identify the heirs to real property when the deceased died without a will (that is, intestate). For help preparing one, read How to Draft an Affidavit of Heirship.
The affidavit is filed ("recorded") with deed records in the county where the decedent’s real property is located. It does not transfer title to real property. However, Texas Estates Code 203.001 says it becomes evidence about the property once it has been on file for five years. The legal effect of the affidavit of heirship is that it creates a clean chain of title transfer to the decedent’s heirs.
Usually, a title company will accept the affidavit to show the chain of title for purposes of selling the real property, but the heirs should check with their title company to be sure.
The person witnessing the affidavit should not be an heir, related to the deceased, or have any interest in the estate.
Witnesses to an affidavit heirship must swear to the following conditions:
You can use the small estate affidavit to transfer real property to a surviving spouse and surviving minor children.
If you only need to transfer real property to a surviving spouse, you can use an affidavit of heirship. An affidavit of heirship cannot be used to transfer other assets like cars or bank accounts.
If you need to transfer a home to adult children or other transferees, you need to use an affidavit of heirship.
If the property to be transferred is a mobile home, use a Statement of Inheritance (Affidavit).
Yes. There is a specific form for that. The Texas Department of Motor Vehicles provides forms for transferring a motor vehicle's title.
While they are alive, a property owner can file a transfer on death deed.
If the deed is done correctly, the property will be transferred immediately upon the transferor's death. The property never becomes part of the estate, so probate is unnecessary to change ownership.
Nothing in this article should be considered legal advice. It is solely for informational purposes. Nor does it substitute for consultation with a competent probate attorney. Nothing in this material creates or implies any attorney-client relationship.