Four routes through Texas probate, and how to check which one an estate actually fits

The first useful hour after a death, once the arrangements are settled, is spent reading rather than filing. Pull the deed to the house and see exactly how the names are written on it. Pull the last statements from every bank and brokerage account and look at whether anyone is named as a beneficiary. Find the will if there is one, and note the date on it. Texas offers several ways to move a dead person's property, and which one an estate qualifies for is decided almost entirely by facts that already exist, not by what anyone would prefer.

The small estate affidavit, and the two numbers that decide it

A small estate affidavit is a sworn document filed with the county clerk, approved by the judge, that lets heirs collect property without an administration. It works only when there is no will at all. The estate's assets, leaving out the homestead and exempt property such as household furnishings and a vehicle, must be worth no more than seventy-five thousand dollars, and those same assets must exceed the known debts, again setting aside anything secured by the homestead. Thirty days must have passed since the death. Every distributee has to sign, and two disinterested witnesses must swear to the family history.

What a careful reader checks here is the real property line. A small estate affidavit can transfer a homestead and nothing else in the way of land. A rent house in another county, twenty acres inherited from a grandparent, a half interest in a lot at the lake: any one of those pushes the estate out of this route entirely. Credit card balances and a hospital bill can also disqualify it, because the arithmetic requires assets to be larger than liabilities. Add the debts before you add the assets, since the debts are usually the shorter list and they settle the question faster.

Muniment of title, when there is a will and nothing owing

Probating a will as a muniment of title means the court declares the will valid and enters an order that itself operates as the transfer of property. No executor is appointed, no letters issue, no inventory is required in the ordinary course, and there is nobody to open an estate bank account. It suits the common situation of a paid-off house, a will leaving everything to one person or to the children equally, and no arguments. The court has to be satisfied that there are no unpaid debts other than those secured by a lien on real estate, so an outstanding mortgage does not defeat it.

Two facts disqualify a muniment more often than any others. The first is medical debt or credit card debt still owing at death, which usually calls for an administration so a personal representative can give notice and pay claims in order. The second is time. A will generally must be offered for probate within four years of death, and after that the applicant has to prove they were not in default for waiting, which is a real burden and not a formality. Check the date of death against the calendar before you check anything else.

Affidavit of heirship, which is not a court filing at all

An affidavit of heirship is signed by two people who knew the family, who were not going to inherit anything, and who can state the marriages, children, and deaths that establish who the heirs are. It is recorded in the real property records of the county where the land sits. No judge sees it. Its strength grows with age, and title companies and oil and gas landmen often accept a well-drawn affidavit that has been of record for years. Its weakness is that it does not bind anyone, so a disagreeing heir or a cautious buyer can simply decline to rely on it.

Independent administration, and the disagreements it absorbs

Independent administration is the full route and the one most Texas estates end up in when the simpler options fail. An independent executor named in a will serves with court supervision that ends after the inventory, or, where there is no will, all the distributees can agree to ask the court for an independent administrator. That agreement is the pivot. When one heir will not sign, the alternative is a dependent administration, where the court approves expenditures individually and the costs rise accordingly. Contested proceedings, will construction, and heirship determinations are the points at which the clerk will not accept a filing from a non-lawyer, since an applicant representing an estate is representing other people's interests.

Whichever route fits, the tax calendar runs on its own schedule: the Internal Revenue Service is responsible for the decedent's final income tax return, and it is due whether or not a court has appointed anyone. Read the deed, count the debts, note the date, and ask each heir plainly whether they agree. Those four checks decide almost every Texas estate before a lawyer is even called.