My Loved One Has Passed Away . . . What Do I Do Now?

If you are reading this article because you’ve recently lost a loved one, you have our firm’s sincere condolences for your loss.  All the tasks to complete following the death of a loved one can seem overwhelming. Even more daunting is the prospect of trying to decide what should be done from a legal standpoint to resolve your loved one’s estate and property issues.  This article is designed to describe generally what surviving family members need to do after a loved one passes.  It will familiarize the reader with the various options Texas law offers to administer and resolve the estate of a deceased loved one.

It is important to know whether your loved one left a will.  Following a death, family members should make a diligent search through the important papers of the deceased to locate a loved one’s last will and testament. Sometimes this document may be a formal-looking document with witnesses and notary seal, and sometimes it may be a hand-written statement in which a loved one has indicated his wishes for disposition of his property after death.  Either form (and many variations in between) can be accepted in Texas courts as a last will and testament.

The law in Texas allows four (4) years from the date of death of any person for that person’s will to be presented to the courts for probate.  If it has been more than four years since your loved one’s death, don’t just give up: go and consult with an attorney familiar with probate law in Texas to find out whether your loved one’s will can still be probated.

Once you know you have your loved one’s last will and testament, you have several options under Texas law to probate that will.  Texas has a streamlined probate process that makes it relatively easy to probate a will. Regardless of which process you choose, the probate process is designed to present the will to a court and have it recognized by the court as the last will and testament of the deceased. Then, depending upon what option you have chosen, the court will either appoint an executor or administrator, or simply admit the will to probate as a muniment of title. 

Many people are familiar with the practice of appointing an executor or administrator – this is a person who is named in the decedent’s will to serve in that capacity.  Their job is to collect the assets of the estate, follow the provisions of the will regarding payment of debts and obligations, and finally distribute the assets in accordance with the wishes of the decedent as expressed in the will.

A will probated as a muniment of title does not result in the appointment of an executor or administrator.  The will is recognized by the court, and then filed, along with the court’s order, in the public records of the county where the decedent had his domicile.  This serves as public notice that the property, whether real property (land or interests in real property) or personal property, has passed to the person named to receive it in the will.

If your loved one did not leave a last will and testament, don’t despair.  Texas law provides a few different ways in which your loved one’s estate can be resolved.  No court action at all is required to prepare and file an affidavit of heirship.  This is a sworn statement by the surviving family members of the deceased describing the decedent’s family and marital history, and stating who are the surviving heirs.  The affidavit is signed by each heir and by two witnesses who are not family members or entitled to receive any part of the deceased’s property. The affidavit is then filed in each county in which the decedent owned real property, or in the county where the decedent lived, if the decedent did not own any real property. The affidavit of heirship, once filed in any county in which the decedent owned real property, is evidence of ownership by the heirs of the decedent.  No deed is required.

When your loved one passes without leaving a will, their estate can also be resolved as a “small estate” if the value of the property of the estate is equal to or less than $75,000.00, excluding the value of any homestead.  But, this must be done before the expiration of four years from the decedent’s death. This process does use the probate court.  An affidavit very similar to an heirship affidavit is prepared and signed by all the heirs and two witnesses.  But this affidavit is filed with the probate court.  The court will review and approve the affidavit, and issue an order “approving” the small estate.  Then, the affidavit and the court order approving the small estate is filed in any county in which the decedent owned real property, and in the county where the decedent was living at the time of his death.  Once filed, the affidavit and order are evidence of ownership of any property, whether real estate or personal property, by the heirs of the decedent. 

Finally, a loved one’s estate can be administered by a combination of an heirship proceeding and an administration.  This must be done before the expiration of four years from the decedent’s death. First, an application to determine heirs is filed.  All of the heirs are identified, and the procedure asks the court to confirm and issue an order identifying all the heirs of the decedent.  After that, a family member can ask the court to appoint an administrator of the estate.  An administrator can then collect all assets of the estate, pay debts and obligations if necessary, and finally distribute the assets to the heirs in the proportions that were approved by the court in the heirship proceeding.

We hope this article has given you enough information to calm any worries you are experiencing if you are trying to resolve the estate of your loved one.  Our firm can assist you in evaluating your options and can recommend cost-efficient ways to finalize your loved one’s estate in the shortest period of time.  Even if you do not use the services of our firm, we wish you all the best.

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Diana Tough

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