Do I need to probate an insolvent estate?

UPDATED: Sep 30, 2022

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Do I need to probate an insolvent estate?

My new husband died last month intestate and his liabilities exceed his assets by more than 30,000. We had separate accounts, no joint assets or liabilities. I need to access his checking account to recoup funeral expenses, medical expenses and whatever is left for living expenses. His vehicle is free and clear and I need to transfer the title to my name so I can sell it. The banks will not let me access the cash left without a letter of testamentary. Not sure how to start the process or which direction to take. His estate doesn’t seem to qualify for a small estate because of the insolvency.
Any feedback or direction would be appreciated.
Thank you-

Asked on February 9, 2017 under Estate Planning, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Texas has a document called "Affidavit of heirship," which is often an effective tool for side stepping a probate.  It can be drafted fairly inexpensively by a probate attorney.  Many banks will accept affidavits of heirship.  However, if you have a bank that is a little more difficult, you may have to do a quick probate.  Considering that the estate is insolvent, it should not be a drug out process.  It may not be a bad idea to probate his estate to protect you and your assets from future claims by his creditors.  If you probate the estate and give notice to the creditors, then it's harder for them to go after your separate assets later.  I would really suggest that you arrange for a consultation with a probate or wills and trust attorney to assist you.  They may also be able to help you with the bank and any creditors.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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