Most people are familiar with a will, whether prepared by an attorney or a “holographic” will, one written entirely by an individual prior to his or her death. Holographic wills in the decedent’s handwriting are frequently used in emergencies when someone would otherwise die without a will. But in some cases, an individual may not have an opportunity to create one in time.
Creating a will and discussing it with an attorney well in advance of needing one is always a good idea. But when life happens and an individual is caught without one, administering his or her estate becomes a matter for Texas probate courts.
These are sometimes called “last will and testament.” Without one in place, handling your final affairs when you die becomes a burden on your loved ones, and the State of Texas gets involved.
A valid will sets out your final wishes, and distributes property to the individuals you intended. This means that if you intend for a sibling, cousin, or other relative to raise your children in your absence, you can state this and the court will, in most cases, abide by it. Your property will be divided the way you want, including providing for your spouse and any minor children. A will also can make sure that your estate is not inherited by someone you wouldn’t have named as a beneficiary yourself.
A person who dies without a will is called “intestate.” The state of Texas then takes on the job of dividing up your property, finances and other matters, including who will raise your children. It’s particularly important if the other parent is also deceased. Chances are the state will not handle your final affairs in the way you would like, and a judge whom you’ve never met will decide your children’s fate and divide up your assets. This is why having a will well in advance of needing one is highly recommended.
Small Estate Affidavits (SEA)
This is one option available if someone dies without a will and doesn’t have a lot of money and/or property. The probate process can be a long, expensive process and leave little after it’s completed. In this case, it’s wise to talk with a probate attorney about a Small Estate Affidavit.
This option is available if:
- The decedent (individual) died without a will
- He or she left less than $75,000, not including exempt and homestead property
- The decedent’s assets are worth more than the debts
- The decedent’s only real property was the homestead, and that property will be inherited by anyone homesteading with the deceased at the time of death, i.e, surviving spouse and/or children.
- All potential heirs are locatable and are willing to sign the affidavit (or an individual with legal authority to sign on their behalf)
- No one has applied for or has been appointed as a personal representative
- The estate doesn’t require any administration
Because there are no named heirs, the SEA must name all heirs and what share of property they are entitled to receive.
Which One Is Better?
Obviously, having a valid Texas will is a better option than leaving your family to deal with your estate through the SEA. But if your estate is small and doesn’t have a lot of assets, an SEA will make it easier on your family.
If you’re dealing with the estate of a loved one who passed away without a will, it’s a good idea to discuss your concerns with an attorney who is familiar with the SEA and what it offers to families and beneficiaries. It’s not necessary to have an estate planning or probate attorney for an SEA, but seeking the advice of an attorney can help you make the right decisions and ensure that everything is done correctly.
Let Wendy L. Hart Help With Wills, Estate Planning and Small Estate Affidavits
Wendy L. Hart is both an experienced family law attorney as well as an estate-planning attorney. She understands what’s involved when planning your estate, and can make sure your wishes are carried out properly.
If you’re faced with handling a loved one’s estate on your own, we’d be happy to help. Visit our Mansfield office at 2363 HWY 287 N, Suite 108, use our online contact form, or call us at (817) 842-2336. We’re ready to help.