When a person passes without a Will, they often leave their family and friends in a state of confusion as to how to dispose of their personal property and real estate. This especially applies when a person’s spouse passes away without a Will. Not only is the living spouse grief stricken, they are also left to navigate the muddy waters of how to carry out their deceased spouses business and personal affairs. Attempting to pay burial expenses and estate debts can be very costly and frustrating when you are unable to access your spouse’s bank accounts. In addition, paying taxes on a home, refinancing a home, or selling a home can be very difficult if your name is either not on the deed or you have failed to remove your deceased spouse from the deed. These are common occurrences when a loved one passes, but the law provides for alternatives to probating a will that allow you to handle the affairs of a deceased loved one.
AFFIDAVIT OF HEIRSHIP
An Affidavit of Heirship is generally used when someone dies without a Will and has left real estate. To have title to the property transferred to the Decedent’s heirs, the heirs can file an affidavit of heirship in the deed records of the county in which any piece of real estate owned by the Decedent is located.
An Affidavit of Heirship must be done even in the event that you and your spouse have purchased real estate together. The property does not automatically pass to the living spouse. An affidavit of heirship must be done to transfer the deceased spouse’s interest in the real estate to the living spouse.
TRANSFER ON DEATH DEED
An alternate way to transfer real property to someone else upon the death of the Decedent is to have the Decedent execute a Transfer on Death Deed. The deed allows the owner to keep the exact same rights to the property that they’ve always had while they are alive, but in the event of their death the property will automatically transfer to a designated beneficiary.
A transfer on death deed is ideal for married couples because this method of transferring property does not require court intervention.
SMALL ESTATE AFFIDAVIT
A Small Estate Affidavit is similar to an Affidavit of Heirship, but this document is generally used to handle the Decedent’s financial affairs (banks and other financial institutions) and does not transfer title to real estate. This document is filed with the probate clerk in the county where the Decedent passed or any county where the Decedent owns real estate. If your spouse has passed away without a Will, I always advise to seek legal counsel before taking any steps to manage their estate.
Attorney Krystin Collins is a native of the Acres Homes Community. She is a graduate of Texas Southern University Thurgood Marshall School of Law and has been a licensed attorney since 2009. Her primary practice areas are criminal defense, civil litigation, personal injury, estate planning, and divorce. She may be contacted at 713-775-0332 or email@example.com.
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