Alternatives to Probate When Transferring Assets
Frisco Probate Lawyer
Depending on the size of the estate and the person to whom property is being transferred, you may be able to distribute some assets without needing to go through the formal probate process.
If you have questions about whether these alternatives to probate would work in your case, talk to our probate lawyers at Albin Oldner Law, PLLC.
Muniment of Title
If there are no debts to pay on behalf of the estate, other than those secured by real property, and no actions are required to dispose of any assets of the estate, this may accomplished by submitting a Will to the probate court as a Muniment of Title. No executor or administrator need be appointed.
Affidavit of Heirship
An Affidavit of Heirship is used when someone dies without a Will and the estate consists primarily of real property titled in the deceased’s name. An Affidavit of Heirship transfers title from the Decedent’s name into the names of the heirs creating a clean chain of title transfer without having to go to probate court.
The Affidavit of Heirship must be signed by two disinterested witnesses and is then filed and recorded with deed records in the county where the property is located. Some title companies may be reluctant to accept an affidavit of heirship to transfer ownership of real property, but we will advise you on whether this is a viable alternative.
Small Estates Affidavit
A Small Estates Affidavit is another probate alternative that can be used if someone dies without a Will and the value of the estate (excluding a homestead, exempt personal property and non-probate assets) is less than $75,000, and the assets of the estate exceed the known liabilities.
- The law defines the size of a homestead for urban and rural areas
- The law specifies the extent to which certain kinds of personal property are exempt and the value limit of that exemption. For example, there is no limit to the value of home furnishings, tools and clothes.
The “small estate” affidavit can be effectively used to transfer assets for estates where the home and non-probated assets are the majority of the estate and everything else is valued less than $75,000.
Estate administration is not necessary if the heirs file an Affidavit showing they are entitled to receive the property in the estate. However, it cannot be used to transfer title to a homestead if there is more real property of the estate than just the homestead.
Transfer of Non-Probate Assets
Non-probate assets are property that is not owned solely by the person who has died. For example, a home owned jointly by two spouses, a bank account or life insurance policy with a named beneficiary, property held in trust, or a retirement account.
Non-probate property is passed along by:
- A contract with a beneficiary designation, such as a life insurance policy, an IRA or pension, or a profit-sharing plan.
- A right to survivorship for property held as joint tenants with the right of survivorship, or in a Payable on Death account. This can include homes, bank accounts, CDs, stocks and bonds
- Inclusion in a Trust. Trust assets move into the Trust as a result of the terms of the Trust contract, rather than under the terms of a Will.
Homestead Transfer on Death Deed
Effective September 1, 2015, Texas allows property owners to transfer real property to their beneficiaries outside the probate process by creating a Texas Transfer on Death Deed. The deed works like a beneficiary designation on a retirement plan or an insurance policy.
Informal Family Settlements
Finally, the law allows families to settle estates on their own if the estate is small and consists only of personal effects. If a car or truck is part of the estate, a new Certificate of Title must be applied for by filing an Affidavit of Heirship with the county tax assessor’s office.
Get Help Probating a Texas Estate
We serve clients in McKinney, Celina, Allen and communities throughout Denton County.