The Common Law

I have asked Joe Marrs, an attorney with a specialty in wills and probate issues, to guest write today's column.

– Luke Ellis

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Intestacy: No Will, Several Ways

A relative passed away recently, and the duty has fallen to me to wind up her affairs. We don't know if she left a will. What can I do?

First, listen closely to the lesson your relative is teaching you: If you don't already have one, make a will, now, before you die, then keep it somewhere safe where others will find it. Dying without a will leaves the deceased's estate intestate, which means that the law names who the heirs are and how much they will get. The end result is almost always more expensive and troublesome (for the heirs!) than if the deceased had left a simple will.

Second, make sure the deceased is truly intestate: Did she leave no valid will on the date of her death? Even if you believe a will was lost, invalid or revoked, it may be possible to probate it or an earlier will which still exists. If you believe this to be the case, the wisest course is to hire a probate lawyer, because proving such circumstances requires a court hearing and legal expertise.

If the deceased is truly intestate, however, it is possible to proceed without a lawyer in certain limited circumstances. Basically, if the deceased's estate is worth less than $50,000, and the only real estate owned by the deceased is occupied by a surviving spouse or adult child, you may be able to execute a Small Estate Affidavit if you are an heir-at-law and all the other heirs agree to sign off. Bear in mind that you must swear to the facts alleged in the affidavit, along with two disinterested witnesses familiar with the relative's family. With the approval of the probate court judge, this will entitle the heirs to collect the property of the deceased without further permission from the court. However, judges may accept or deny such affidavits at their discretion, so it is important to contact the court to find out its policy on Small Estate Affidavits before trying to draft one yourself. The number for the law clerk at the Travis County Probate Court is 854-9283 (don't expect too much hand-holding, however – officers of the court cannot provide you with specific legal advice).

If the intestate estate does not meet the conditions for a Small Estate Affidavit, you ought to contact an attorney. A formal Determination of Heirship (the most common procedure in intestate estates) cannot, in many counties (including Travis), be attempted without a lawyer. If you don't believe you can afford one – bear in mind that the expense of probate generally comes out of the estate first, then your pocket – try contacting Legal Aid of Central Texas (www.lact.org) or Volunteer Legal Services (www.vlsoct.org), who can help put a good attorney within your financial means.