When someone dies without a will in Texas, the family is left with loose ends: a house still in the deceased person’s name, a bank account that is frozen, and title companies and banks asking for documents nobody has. The Texas intestacy statutes decide who inherits.
This guide explains how the estate actually gets settled, from the first steps to the court procedures that transfer property to the heirs.
First Steps After a Death
- Obtain several certified copies of the death certificate
- Look for any will, trust, or other estate planning documents, including in a safe deposit box
- Arrange for the care of minor children and pets, and secure the home and vehicles
- Make a list of assets and debts, and find out which accounts have named beneficiaries
If no one knows who has the right to make funeral arrangements, Texas law sets an order of priority. See who can make funeral arrangements in Texas.
Is Probate Always Necessary?
Not always. Life insurance, retirement accounts, and accounts with payable-on-death or transfer-on-death beneficiaries pass directly to the named beneficiaries with a death certificate. So do accounts with survivorship rights and real estate covered by a transfer on death deed or lady bird deed. A court process is generally needed only for property that was in the deceased person’s name alone with no beneficiary, such as a house or a bank account without a payable-on-death designation.
When that kind of property exists, Texas offers four main options.
Option 1: Small Estate Affidavit
A small estate affidavit is the simplest court route. It may be used when:
- The person died without a will
- At least 30 days have passed since the death and no administration is pending
- The estate’s assets, not counting the homestead and exempt property, are worth $75,000 or less
- The assets exceed the known debts
The affidavit lists the assets and debts, describes the family history, and identifies the heirs. It is signed by the heirs and two disinterested witnesses, filed with the probate court in the county where the person lived, and approved by the judge. Once approved, banks and others can release property to the heirs. The main limitation: the homestead is the only real estate that can pass this way.
Option 2: Affidavit of Heirship
An affidavit of heirship is a sworn statement of the family history and the identity of the heirs, typically signed by one or two disinterested witnesses who knew the family, and recorded in the real property records of the county where the property is located. It does not involve the probate court, which makes it the least expensive option.
It also has limits. It is not a court judgment, it does not clear title from the deceased person’s debts, and some title companies and lenders will not rely on it, especially when facts are disputed, an heir is missing, or creditors are a concern. After it has been on record for five years, it becomes presumptive evidence of the facts it states.
Option 3: Court Determination of Heirship
A determination of heirship is a court proceeding that formally declares who the heirs are and what share each one receives. It is filed in the county where the person lived or owned property. The court appoints an attorney ad litem, paid from the estate or by the applicant, to search for unknown or hard-to-find heirs. Known heirs receive notice. At the hearing, two disinterested witnesses who know the family history testify, and the judge signs a judgment declaring heirship.
It takes longer and costs more than an affidavit, but the result is a court judgment that title companies and banks accept. It is the right choice when there is significant real estate, when family facts are unclear, or when someone may contest who the heirs are.
Option 4: Administration
If the estate has debts to pay or assets to collect and sell, the court can appoint an administrator, usually after or together with a determination of heirship. Without a will, a dependent administration is the default. The administrator posts a bond, files inventories and accountings, and needs court permission for many actions, which makes it slower and more expensive.
If all of the heirs agree, they can ask the court for an independent administration instead, which lets the administrator settle the estate largely without court supervision. Independent administration is how most Texas estates with wills are settled, and it is a major reason Texas probate is simpler than in many states.
Vehicles
Texas allows heirs to transfer a vehicle using an affidavit of heirship for a motor vehicle filed with the county tax office, without going to court. That form only works for the legal heirs.
What If a Will Turns Up Later?
A will generally must be offered for probate within four years of the death. If someone finds a will after the heirs have started settling the estate, talk to an attorney right away. After four years, the will can only be used in limited situations, and the estate may continue to pass as if there were no will.
Choosing the Right Option
| Situation | Usually the best fit |
|---|---|
| Only beneficiary-designated or survivorship assets | No court process; claim with death certificate |
| Small estate, no real estate other than the homestead (if surviving spouse or dependent children) | Small estate affidavit |
| Only real estate, clear family history, no disputes, no debts | Affidavit of heirship (confirm the title company will accept it) |
| Real estate to sell, unclear family facts, or missing heirs, debts to pay and assets to collect. | Determination of heirship proceeding |
Frequently Asked Questions
How long does it take?
A small estate affidavit can take a few weeks after the 30-day waiting period. A determination of heirship often takes several months because of notice requirements and the attorney ad litem’s investigation.
Do I need a lawyer?
For a court determination of heirship or an administration, Texas courts generally require the applicant to be represented by an attorney, because the applicant acts for other heirs and creditors as well as himself or herself.
Can the heirs sell the house right away?
Usually not until title is cleared through one of the options above. Title companies typically want a judgment declaring heirship or, in simpler cases, a recorded affidavit of heirship they are willing to insure.
Get Help Settling an Estate
Every one of these procedures is easier, and often unnecessary, when there is a valid will. If you are settling the estate of a family member who died without one, or want to make sure your own family never has to, schedule a free introductory conference.
