What is Probate Law?

After someone passes away, the probate process provides for the transfer of their assets, resolution of their debts, and empowers someone to administer the estate. 

If your loved one died with a will, you can think of the probate process as having two steps. Step one is getting the will recognized by the Court so we can act in accordance with it and getting someone appointed as executor. Step two is administering the estate. Once the executor is appointed, their job is to gather assets, pay debts, and distribute the net estate to the beneficiaries, while also satisfying the legal requirements to give notice to beneficiaries and creditors and prepare an inventory. While this may sound like a big job, the process of probating an uncontested will and administering the estate is generally pretty straightforward. 

If your loved one passed away without a will, the broad goals of probate (determining who gets the property and administering the estate) are the same, but depending on the situation, there are a few possible paths to pursue. The three most common are:

Heirship Determination

The most effective option is to ask the Court to make a formal finding of who the decedent’s legal heirs are. The judicial determination of heirship is analogous to a Will, in that it says who is entitled to the decedent’s property, and it is reliable proof that banks, title companies, and other 3rd parties can rely upon. It may also be appropriate to ask the Court to appoint an administrator (similar to an executor) who can gather and liquidate assets, resolve debts, and then distribute property. If all heirs agree, the administrator may be appointed as an “independent administrator” so they can administer the estate cost-efficiently without needing to obtain Court approval for every action. A determination of heirship plus appointment of independent administrator is the intestate (no will) equivalent of a well-drafted will appointing an independent executor. 

Small Estate Affidavit

Small estate affidavits are available when a decedent owned a limited amount of property (currently less than $75,000, with some exceptions), died without a will, and has limited or no debts. Small estate affidavits must be filed with the Court and reviewed by the Judge but do not require a hearing. While they only work in limited situations, small estate affidavits may be a cost-efficient alternative to a judicial determination of heirship.

Affidavits of Heirship 

Affidavits of heirship are, essentially, sworn statements by disinterested witnesses stating who the decedent’s heirs are. These are filed in the real property records and serve as a link in the chain of title to show how the decedent’s property passed to their heirs. Affidavits of heirship are an easy and cost-efficient option but work only in limited circumstances and, since they don’t involve a judicial finding of heirship, may not be relied upon by title companies or other 3rd parties.

Ellen Williamson Law proudly serves Dallas County and the Greater Dallas Metroplex area. We guide our clients through the difficult and complex journeys related to estate planning, probate law, and guardianship. Our goal is to help you navigate the complicated legal process while providing the best possible customer service and reducing confusion.

If you’re ready to have a conversation with a member of our team, contact us today.