division of property without a will

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division of property without a will

In the state of Texaas if there is no will how is the estate divided and how can you make sure this happens ? Can’t afford legal help

Asked on June 20, 2009 under Estate Planning, Louisiana

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

In general, when someone dies, the estate must go through probate which can be a complicated and lengthy process.  But many states, including Texas, provide less complicated options for smaller estates.

Texas has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount.  All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset.  This document, signed under oath, is called an affidavit.  When the person or institution holding the property -- for example, a bank where the deceased person had an account -- gets the affidavit and a copy of the death certificate, it releases the asset.

The out-of-court affidavit procedure is available in Texas if there is no will, and the value of the entire estate, not including homestead and exempt property, is $50,000 or less. A probate judge must approve the affidavit. It can be used to transfer homestead, but no other real estate. There is a 30-day waiting period.

If the above is not an option for you, Texas also has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure.  The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate.

You can use the simplified small estate process in Texas if the value of the property doesn’t exceed what’s needed to pay the family allowance and certain creditors.  “Independent administration” is available, regardless of value of estate, if it’s requested in the will or if all inheritors agree to it.

If you can't afford an attorney contact legal aid or see if there is a law school nearby, they usually run free/low cost clinics.  You can also go to the probate court in the county where the deceased resided at the time of their death.  The people there will have the forms that you need and can be helpful in filling them out.

J.M.A., Member in Good Standing of the Connecticut Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

What you need to do is locate what is called "legal aid" in your state.  these are lawyers that work for free and wil give you advice and show you what to do.  My suggestion is to go to the probabte court and open up an estate.  The clerks there are usually helpful and can show you what you need to do.  I would take the lead and appoint yourself executor of the estate so you can be in charge of dividing up the assets.  Generally, the assets will go in equal shares to the heirs according to the bloodline.  I would have to know more facts to tell you who is getting what (i.e. who died, who are the heirs, etc.  Go to the probate court and see what you can do on your own.


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