Probate without a Will

All is not lost if your loved one dies "intestate" (without a Will).  Texas has default inheritance rules in place for such an occurrence.  See Texas Probate Code Section 38.  Thus, if there is no Will, or the decedent's Will is found to be invalid, the decedent's heirs can still be determined and the decedent's estate can still be probated.

Graphical General Description of Texas Descent and Distribution Prior to September 1, 1993

Graphical General Description of Texas Descent and Distribution on or After September 1, 1993

Four Quick Steps to Probating an Intestate Estate

Step 1: Select the Type of Administration

Step 2: Select the Payment Arrangement (Flat fee available in some cases.)

Step 3: Print and Complete Prospective Client Information Worksheet

Step 4: Mail the Completed Prospective Client Information Worksheet and COPY of the Will to the Firm

Step 1: Select the Type of Administration

Affidavit of Heirship (No Administration) .

When used.  To establish title to estate property where the sole asset is real property. 

Requirements.  In order to file an Affidavit of Heirship, the following requirements must be met:

1. The decedent must have died without a will;

2. No petition for the appointment of a personal representative may be pending or have been granted; and

3. No formal administration is necessary.

Procedure.  An Affidavit of Heirship is prepared that details the decedent's heirship facts and the assets of the estate.  The Affidavit is then signed before a notary public by two disinterested witnesses.  The Affidavit is then filed in the Real Property Records on file with the County Clerk's office.

Administration?  No.  The court does not appoint an administrator in this type of proceeding because no formal administration is necessary.  Some financial institutions, however, may insist on only releasing estate funds to a court-appointed executor or administrator.  The institutions do this by insisting that they receive "Letters Testamentary" or "Letters of Administration" prior to releasing estate funds.  These "Letters" are the documents issued by the court to the court-appointed executor or administrator.  If your loved one had securities or significant bank accounts, you may be forced to ask the court for an administration.  You should check with the decedent's financial institutions before selecting this type of probate proceeding.

Small Estate Affidavit (No Administration with Court Approval).

When used.  To collect a small amount of money owed to the estate (such as a small bank account).

Requirements.  In order for the court to approve such an Affidavit, the following requirements must be met:

1. The decedent must have died without a will;

2. The assets of the estate, exclusive of homestead and exempt property, must exceed the known liabilities of said estate, exclusive of liabilities secured by homestead and exempt property;

3. No petition for the appointment of a personal representative may be pending or have been granted;

4. Thirty days must have elapsed since the death of the decedent; and

5. The value of the entire assets of the estate, not including homestead and exempt property, must not exceed $50,000.

Procedure.  A Small Estate Affidavit is prepared that details the decedent's heirship facts and the assets of the estate.  The Affidavit is then signed before a notary public by all of the heirs of the estate and two disinterested witnesses.  The Affidavit is then filed with the court which either approves or denies the Affidavit.  If approved, the Court will issue an Order Approving Small Estate Affidavit.  The Order constitutes authority for the bank to transfer the money to the distributees named in the Affidavit. 

Administration?  No.  The court does not appoint an administrator in this type of proceeding because no formal administration is necessary.  Some financial institutions, however, may insist on only releasing estate funds to a court-appointed executor or administrator.  The institutions do this by insisting that they receive "Letters Testamentary" or "Letters of Administration" prior to releasing estate funds.  These "Letters" are the documents issued by the court to the court-appointed executor or administrator.  If your loved one had securities or significant bank accounts, you may be forced to ask the court for an administration.  You should check with the decedent's financial institutions before selecting this type of probate proceeding.

Determination of Heirship (No Administration with Court Judgment).

When used.  To establish title to estate property where the assets include real and/or personal property and the estate does not qualify for a small estate affidavit.  Also used when the all of the heirs of the estate cannot or will not sign a small estate affidavit.

Requirements.  In order for the court to issue a Judgment Declaring Heirship, the following requirements must be met:

1. The decedent must have died without a will or when there was a Will but any real or personal property was omitted from such will;

2. There are no debts due and owing by the estate;

3. No petition for the appointment of a personal representative may be pending or have been granted; and

4. There is no need for a formal administration.

Procedure.  An Application for Determination of Heirship is filed with the court.  The court then appoints an attorney ad litem for unknown heirs who will investigate the heirship facts of the decedent.  After a hearing, the court will issue a Judgment Declaring Heirship which names the heirs of the estate.  The Judgment Declaring Heirship can then be used to prove title to estate property.

Administration?  No.  The court does not appoint an administrator in this type of proceeding because no formal administration is necessary.  Some financial institutions, however, may insist on only releasing estate funds to a court-appointed executor or administrator.  The institutions do this by insisting that they receive "Letters Testamentary" or "Letters of Administration" prior to releasing estate funds.  These "Letters" are the documents issued by the court to the court-appointed executor or administrator.  If your loved one had securities or significant bank accounts, you may be forced to ask the court for an administration.  You should check with the decedent's financial institutions before selecting this type of probate proceeding.

Court Created Independent Administration (Unsupervised Administration).

When used.  There is a necessity for an administration and all of the heirs of the estate agree to an independent administration and the person to serve as administrator. 

Requirements.  In order for the court to create an independent administration, the following requirements must be met:

1. The Decedent's date of death must have been within the last four years.

2. The decedent must have died without a will or when there was a Will but any real or personal property was omitted from such will;

3. There must be a need for a formal administration;

4. All of the heirs of the estate agree on the agree on the advisability of having an independent administration;

5. All of the heirs of the estate agree on a qualified person, firm, or corporation that will serve as independent administrator;

6. The court must find that an independent administration is in the best interest of the estate (note: the court will usually not grant an independent administration if a minor child is an heir to the estate).

Procedure.  An Application for Letters of Administration Pursuant to Section 145 of the Texas Probate code is filed with the court.  All of the heirs of the estate must either sign on to the Application or sign a consent form.  The court may appoint an attorney ad litem for unknown heirs who will investigate the heirship facts of the decedent.  At the hearing, the court will determine if there is a need for an administration and whether an independent administration is in the best interest of the estate.  If so, the Court will appoint an Independent Administrator of the Estate and issue Letters of Administration to the Administrator.

Administration?  Yes.  The Administrator will be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the heirs of the estate in accordance with the default inheritance rules.

Dependent Administration (Supervised Administration).

When used.  There is a necessity for an administration and all of the heirs of the estate will not or cannot agree to an independent administration or the person to serve as administrator.  This is frequently the case when the beneficiaries are hostile towards one another or when one of the beneficiaries is a minor child.

Requirements.  In order for the court to create an independent administration, the following requirements must be met:

1. The Decedent's date of death must have been within the last four years.

2. The decedent must have died without a will or when there was a Will but any real or personal property was omitted from such will; and

3. There must be a need for a formal administration.

Procedure.  An Application for Letters of Administration is filed with the court.  At the hearing, the court will determine if there is a need for an administration.  If so, the Court will appoint an Administrator of the Estate and issue Letters of Administration to the Administrator.

Administration?  Yes.  The Administrator will be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the heirs of the estate in accordance with the default inheritance rules.  The court closely supervises the administration of the estate. Bills cannot be paid and assets cannot be sold or distributed without the approval of the court. Periodic accountings must also be prepared to advise the court of the status of the estate.  The amount of attorney time in this type of proceeding is generally a function of the number of creditors of the estate, the amount and character of the assets in the estate, and the degree of disharmony amongst the heirs.

Step 2: Select the Payment Arrangement

Hourly-Fee Probate.

If a dependent administration is required or if another person is contesting your Application for Probate, there is no way to know in advance how long or how difficult the case will be.  There is also no way to estimate costs.  The only fair way to bill attorney's fees for these types of cases is to bill fees on an hourly basis and bill costs as they are incurred.  No flat fees are available.  Effective January 1, 2007, The Duran Firm's hourly rate for attorney's fees is $195.00 per hour.

Fixed-Fee Probate.

The Duran Firm can often assist a beneficiary of the estate for a fixed fee.  In fact, the overwhelming majority of the Firm's clients qualified for fixed-fee probate.  The type of administration required determines whether or not a fixed fee is possible.  Of course, The Duran Firm cannot quote you any price until the facts and circumstances of the case are determined.         

In order to be eligible for consideration for a fixed fee, the following conditions must be met:

1. The Decedent must have been a resident of Dallas County, Texas.
    

2. The matter must be uncontested, i.e. the family must be in agreement as to the administration of the estate and the person to serve as administrator, if applicable.

The Duran Firm likes to give you a complete picture of what you can expect to pay for your probate case.  Thus, we have included your other expected out-of-pocket costs in our estimates.  If you are shopping around, be sure to ask whether the quoted price includes filings fees and other out-of-pocket costs.

Affidavit of Heirship

          The estimated fee and cost for an uncontested Affidavit of Heirship are as follows:

This flat fee includes assistance with the following tasks only:

1. Initial consultation; and

2. Preparation of an Affidavit of Heirship.

The heir of the estate is responsible for filing the Affidavit with the County Clerk's office.  A fee is usually associated with the filing.  In Dallas County, the fee is $16.00 for the first page and $4.00 for each additional page.  Most clients do not require additional assistance but if you require further help, the Firm will be glad to help you with those tasks at the Firm's hourly rate.  The Firm will, of course, seek your approval before incurring any hourly charges.  The good news is that the overwhelming majority of the Firm's past fixed-fee cases involved no hourly charges.  

Small Estate Affidavit
          The estimated fee and costs for an uncontested Small Estate Affidavit are as follows:

This flat fee includes assistance with the following tasks only:

1. Initial consultation;

2. Preparation of a Small Estate Affidavit;

3. Preparation of an Order Approving Small Estate Affidavit; and

4. Filing of the Small Estate Affidavit.

Since no administration is required, all other tasks not specifically listed above are tasks that can be accomplished by you as an heir of the estate.  Usually this merely involves distributing the property to the heirs of the estate.  Most clients do not require additional assistance but if you require further help, the Firm will be glad to help you with those tasks at the Firm's hourly rate.  The Firm will, of course, seek your approval before incurring any hourly charges.  The good news is that the overwhelming majority of the Firm's past fixed-fee cases involved no hourly charges.

Determination of Heirship

          The estimated fee and cost for an uncontested Determination of Heirship are as follows:

This flat fee includes assistance with the following tasks only:

1. Initial consultation;

2. Preparation of an Application to Determine Heirship;

3. Preparation of the Proof of Death and Other Facts;

4. Preparation of two Proofs of Heirship;

5. Preparation of the Judgment Declaring Heirship; and

6. Attendance at the hearing on the Application.

Since no administration is required, all other tasks not specifically listed above are tasks that can be accomplished by you as an heir of the estate.  Usually this merely involves distributing the property to the heirs of the estate.  Most clients do not require additional assistance but if you require further help, the Firm will be glad to help you with those tasks at the Firm's hourly rate.  The Firm will, of course, seek your approval before incurring any hourly charges.  The good news is that the overwhelming majority of the Firm's past fixed-fee cases involved no hourly charges.

Uncontested Court Created Independent Administration

     The estimated fee and cost for an uncontested Court Created Independent Administration are as follows:

This flat fee includes assistance with the following tasks only:

1. Initial consultation;

2. Preparation of an Application for Determination of Heirship and Issuance of Letters of Independent Administration Pursuant to Section 145 of the Texas Probate Code;

3. Preparation of any required Distributee's Consent and Waiver of Notice;

4. Preparation of the Proof of Death and Other Facts;

5. Preparation of two Proofs of Heirship;

6. Preparation of the Order Granting Independent Administration and Authorizing Letters of Independent Administration;

7. Preparation of the Oath of the Administrator;

8. Attendance at the hearing on the Application;

9. Preparation of the Inventory, Appraisement and List of Claims; and

10. Preparation of the published Notice to Creditors (not to include publishing fees).

These are the tasks that are normally accomplished in the course of a representation by a probate attorney in a Texas independent administration.  The remaining Administrator's duties not specifically listed above are tasks that can be accomplished by you as the Independent Administrator with your Letters of Administration.  If you require assistance with any other tasks, the Firm will be glad to help you with those tasks at the Firm's hourly rate.  The Firm will, of course, seek your approval before incurring any hourly charges.  The good news is that the overwhelming majority of the Firm's past fixed-fee cases involved no hourly charges. 

Other Estate Administration Expenses

Surety Bond. If the Will does not waive bond, then the Judge may require the Administrator to obtain a surety bond issued by a bonding company.  The amount of the bond is usually equal to the amount of assets in the estate, not including real estate.  The bonding company charges a premium for this service that is usually a small percentage of the bonded amount.

Step 3: Print and Complete Prospective Client Information Worksheet

To get a quick start on your case, an heir (preferably the chosen Administrator, if any) to the estate should download the Prospective Client Information Worksheet for Probate without a Will by clicking on the link below:

 Prospective Client Information Worksheet for Probate without a Will

The Worksheet is a downloadable Adobe^® PDF file.  If you are having trouble downloading the file, you may have to install the Adobe^® Reader^®:

Step 4: Mail the Completed Prospective Client Information Worksheet to the Firm

Once the heir has fully completed the Client Information Worksheet, he or she should send the completed Worksheet to:

The Duran Firm
3102 Maple Ave., Suite 625
Dallas, Texas 75201

A representative from the Firm will contact you upon receiving the worksheet to discuss payment and to coordinate the signing of any Affidavits or Applications.  If you do not hear from the Firm within 1 week of mailing, please call to follow up...

Cash, checks, money orders, MasterCard and Visa are accepted for the payment of attorney's fees and expenses.

No claim to government works. Otherwise, © The Duran Firm, PLLC 2006-2008.

Disclaimer: This website is designed for general information only.
The information presented should not be considered or construed to be legal advice.
Moreover, this site does not create an attorney-client relationship.
The attorney responsible for this site is Michael A. Duran, a Dallas Probate Attorney.
The Duran Firm's principal office is located in Dallas, Texas.