Do we have to go throughprobate if there is not much in the estate?

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Do we have to go throughprobate if there is not much in the estate?

My mom died without a Will in TX; my dad and I are left. She did have 3 children from a previous marriage but legally gave up all rights to them. I do not know them and neither does my dad. So if all my parents had was some land that they lived on and a few other lots, do we have to go through probate or pay taxes? What do we do? Dad is leaving it all up to me to figure out and has already made a Will leaving me everything. So what do I do now?

Asked on March 16, 2011 under Estate Planning, Texas

Answers:

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

Answered 10 years ago | Contributor

There is a proceeding available in TX to deal with "small estates" in a situation in which the size of an estate simply does not warrant a formal probate.  This procedure allows for the distribution of a small estates via an affidavit.  While this procedure is only allowed in the case where a person dies without a Will (your situation), it is not appropriate if there is real property in the estate, unless the real property is the homestead of the decedent. In your case a homestead is involved, but so also is other real estate - the lots.  Consequently, you cannot proceed under this alternative proceeding since the estate does not qualify.  

At this point, you need to speak with a probate attorney in your area directly about your case or contact the probate court (in the county that your mother was domiciled in when she died).  They can best advise you further.


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