Whether or not it’s best to probate a will or use the Texas affidavits of heirship depends on several factors.  At Shutt Law Firm, our Texas probate attorneys almost always recommend probating a deceased persons’ will if  the following apply: 

• There is a valid last will and testament; and/or

• There are assets in the deceased’s name other than the deceased’s home.

The passing of a loved one brings immense emotional weight, often compounded by the need to manage their financial affairs.

In this article, we’ll discuss a common scenario: If a deceased husband leaves everything to a wife through a last will and testament, the surviving wife has lingering ownership questions regarding a jointly owned house and a checking account in the deceased husband’s name. Let’s explore the urgency of addressing these matters and the available options with a professional lens.

Probate vs. Affidavits of Heirship:

Probate the Will: This formal legal process ensures a more secure route for ownership transfer, especially if your family structure involves children from different marriages. If you’re looking for the more “sure-fire” route, then you should definitely consider going ahead and probating the will. However, it entails legal fees and can be time-consuming.

Affidavits of Heirship: This less expensive option utilizes sworn statements declaring your inheritance rights. While potentially faster and cheaper, whether or not it works depends on wether or not you’re truly the only heir, whether or not there are assets other than the home (which can’t be transferred via affidavit of heirship), and whether or not someone might try to legally contest the affidavit of heirship within five years. Consider this route only after the four-year probate window has passed and with guidance from a qualified legal professional (such as an experienced probate attorney).

Let’s talk about affidavits of heirship vs. probating the will, as it relates to these two types of assets…

Checking Account:

Immediate Action Not Necessarily Required: For inactive accounts with minimal holdings, delaying action may be feasible. However, future access or closure could become complex depending on bank policies and account balance.  Evaluate your intention for the account’s funds, whether utilizing them directly or merging them with other accounts. Initiate direct communication with the bank to understand their specific protocols for handling deceased account holders.  

Long story short:  Most banks will not accept an affidavit of heirship to transfer money in bank accounts.  So, if you want that money in the bank account but don’t want to probate the will–you’re going to be waiting a long time to be able to access the money.  After months (or even years) the bank will eventually turn over the funds to the Texas unclaimed funds registry, and you can get the funds thereafter.

If you can wait months or years before getting access to those funds, then maybe this hurdle isn’t a “deal-breaker” for you.

House:

Selling Requires Jumping Through Hoops if using Affidvaits of Heirship: Transferring ownership gets intricate when the house bears the deceased person’s name. Title companies during sale might demand affidavits of heirship proving your inheritance rights, or even formal probate – a court-supervised process for asset distribution.

The problem is, you won’t find out if the title company will require you to probate the will until after you have a contract to sell the home!  The title company will almost certainly approve a probate of the will, but they don’t necessarily approve the use of Affidavits of Heirship.  So, if you want certainty, go with probating the will.  In other words, you might get a contract to sell the home and then learn (after it’s too late to probate) that the title company is requiring a probate… you’re up a crick without a paddle!

Texas Probate and Time Limits: Be mindful of Texas’s four-year window for initiating probate after a death. That’s right, you only have four years to probate a will in Texas. While you might have a valid reason for exceeding this deadline, judges are increasingly stringent in enforcing the four-year limitation. Failing to address probate within the timeframe could create sale-related complications.

Decision-Making Factors:

Cost Considerations: If finances aren’t a limiting factor, opting for probate offers a more secure and well-defined ownership transfer process.  Probate costs more than affidavits of heirship, but is usually worth it if you can afford getting a probate attorney.

Balancing Cost and Time: If minimizing expenses is a priority, you should still probably meet with a probate attorney. They can assess your specific situation, explain the risks and benefits of both options, and guide you towards the most suitable course of action.