Welcome back to the Houston Lawyer Referral Service video series. Your trusted source for clear, reliable legal information from experts serving the greater Houston community. In this video, we’ll be discussing what happens in Texas when someone passes away without a will with your Harris County Public Probate Administrator, Brandon Koffield. Welcome, Brandon, and thank you for doing this video for us. Today we’d like to know what happens if someone dies in Harris County and they do not have a will.
So things get complicated is the best way I can describe it. I mentioned whenever you have a will, typically you’re going to have a person that’s named as the executor, and we’re going to know who’s supposed to get what. When you think about the idea that now the court has to decide who’s supposed to be in charge and who’s supposed to get what, that’s a whole different calculus that has to go on. Some of that has an impact on how long the process is. It has an impact on who knows who. In short, you still file an application. Unlike an application to probate a will, you’ll be filing an application to appoint an administrator and to determine heirship. Those two things usually get filed together, but they can be filed separately. To appoint an administrator is who’s going to be in charge, and the determination of heirship is who the heirs are.
Under Texas law, and as I always say, Texas kind of has an estate plan for you. They make an assumption as to who you would want to get your stuff because you didn’t get a chance to make a will. The idea is if you’re married and you have a spouse, then your spouse is probably going to get your portion of your community property because it’s a community property state. But if you have a kid that’s outside of the relationship that you’re currently in, then the idea is that the separate property will go straight to the kids and not go to the spouse because that spouse and that child aren’t blood related. There are a lot of different nuances as to what the courts, following the law, do. The law lays out who gets what, when, and where. If you’re a single person, do you have siblings? Are both of your parents still living? Or if you’re a single person but you have separate property? Every type of scenario is pretty much covered inside of the law.
Sounds very complicated if you don’t have a will.
Yes.
So if you don’t have a will and someone passes away, do you need to hire an attorney to help you file those documents you were talking about earlier so that this process can get moving?
Yes. Just like whenever there is a will, you have to file an application, and you have to have an attorney to do that. When there’s no will, you also have to file an application and have an attorney. There are only two different documents that are commonly used in probate that you don’t have to hire an attorney for, but generally speaking, you’re going to have to hire an attorney. The biggest reason why is the possibility of fraud.
If there are three siblings and two can’t stand the other sibling, and you could go to court on your own, the court doesn’t know your family. If you go to court and say, “There are only two of us. Give us everything mom and dad had,” and the court says, “All right, since you came up first, here you go,” now you have another sibling that has been cut out. That wouldn’t be fair. As much as people don’t want to pay attorneys or deal with attorneys, it allows the process to go smoother because the court is interacting with a party that’s not currently grieving or emotionally invested, so the business side of this tough time can be taken care of.
So not only is it emotional when someone passes away, if they don’t have a will, the loved ones also have to go through additional costs. So why does probate take so long when there’s not a will?
The biggest piece is that we have to figure out who is supposed to get what. It’s a little bit easier to decide who can be in charge because there is a hierarchy, like a spouse or a child. But when it comes to who gets what, that’s when things get more complicated because the court can’t assume that someone is or is not someone’s child. Ultimately, the court is going to appoint an attorney ad litem, who gets paid by the applicant. That fee is $750.
That attorney ad litem serves as the representative for any unknown heirs. The court receives the application saying here are the children, the relatives, and the heirs. The court then appoints someone to verify that information. They may ask for birth certificates, obituaries, or other documentation. Ultimately, everyone has to come before the court. Two disinterested witnesses who are not inheriting anything testify that the information is true. The attorney ad litem signs off confirming there is sufficient supporting information. Then everyone goes before the court for a prove-up hearing to establish that these are the actual heirs. Everything that was testified to has to be signed, notarized, and filed.
The court has many safeguards in place before confirming heirs because the court wants to get it right and not leave anyone out. That’s why it takes longer. The attorney ad litem has to contact heirs, do research, and confirm consistency. I’ve had cases where everyone knew someone was the child, but there was no birth certificate and no living relatives who could testify to it.
It’s much easier when there’s a will. Get a will. Make sure it’s written correctly. Then there’s no question about what you wanted to happen. Otherwise, you could end up with an estranged sibling inheriting everything even if you haven’t spoken in fifty years, because that person is still next of kin under Texas law.
Very, very important to have a will. And it’s a lot less expensive to have a will drafted. How much does it generally cost to hire an attorney to do a will?
The numbers change, but a reasonable amount is somewhere around $500 to about $1,500. It can be more complicated depending on what you want to do. A will may seem simple, like giving everything to someone, but certain language can affect how things are handled.
So, well, hopefully with this education that the Harris County public probate administration office is putting out, I know you guys have a lot of programs at different precincts that people can come to live and hear you guys speak. And, you know, with these videos, hopefully people in Harris County will realize the importance of a will and get one drafted so the probate courts won’t be so clogged up. And everybody will get what they’re supposed to get from their loved ones. We really thank you for your time here, Brandon. Also stay tuned. We’re going to do a third video talking about some things you can do to save money and time, such as TODDs, transfer on death deeds, PODs, payable on death when you have a bank account, and things of that nature. So stay tuned and watch the next video.
Sounds good.