What Happens if I Die Without a Will?

To die without a will means to die intestate. If someone dies intestate, their family must go through a determination of heirship in the probate court. The determination of heirship is a proceeding in the probate court by which a judge determines who are the heirs of the decedent.

A determination of heirship requires:

  • An application in the probate court;
  • Testimony of two witnesses familiar with the family history of the decedent;
  • Investigation by an attorney ad litem to determine the heirs; and
  • A final hearing in the probate court, in which the judge hears testimony and makes a ruling regarding who are the heirs of the decedent.

Determination of heirship proceedings are more complex and expensive than the simple probate of a will. There are specific rules in Texas regarding who is considered an heir of a decedent. The decedent’s estate (the assets without beneficiary designations at the time of their death) are divided among the heirs. If there are no living heirs, the decedent’s property can escheat to the State of Texas.

Is the will valid in the State of Texas?

A written will is valid in Texas if it is either self-proving or holographic.

A holographic will is one that is entirely in the testator’s handwriting. It cannot contain a mix of type-written content and handwritten content. It must be entirely handwritten by the person making the will and signed.

A self-proving will must:

  • Be signed by two witnesses; and
  • Contain a self-proving affidavit that is notarized

If a will is not either holographic or self-proved, it cannot be admitted to probate. Without a valid will, heirs will have to proceed through a determination of heirship to probate an estate.

What do I do with an out of state will?

If a will was made outside the state of Texas, it can still be probated in Texas if the will is valid under the laws of the state in which it was created. For example, an Oklahoma will can be probated in Texas if it is valid under the laws of Oklahoma.

There are some caveats:

  • Texas requires wills that are not entirely in the Decedent’s handwriting to include a self-proving affidavit. If the out of state will does not have a self-proving affidavit, the court will require the testimony of two witnesses that the signature on the will is that of the Decedent.
  • Texas allows an independent administration, which is a much less expensive and burdensome process for administering an estate. The will, whether it was made in Texas or out of state, must include specific language providing for an independent administration. If it does not contain this language, the Court may require a dependent administration of the estate.

What is the difference between an independent and dependent administration?

The administration of an estate is the process by which an administrator or executor gathers and distributes the assets of the Decedent and pays his or her creditors. The administration can be either dependent or independent.

  • An independent administration allows an executor to administer the estate without the supervision of the court. An independent administrator need only probate the will, give notice to creditors, and file an inventory with the court.

  • A dependent administration requires that an administrator of the estate ask the court for permission at every step of the probate process. It is more expensive and burdensome for the administrator/executor than an independent administration.

If you wish your estate to be administered in an independent administration, you should specify that in your will.

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