What Really Happens If Your Parent Dies Without a Will

Trancript of Interview:

What Really Happens If Your Parent Dies Without a Will

Mike Barnes:  We hear about so many people whose aging parents, well, for whatever reason, they don’t have a will. And when that happens, so many of ’em say, oh, well, y’all can just sort it out after I die. But that makes it so, so difficult for so many people.

Kim Barnes: Right. It can get pretty complicated. Today we’re bringing in Jeff Barnett with Barnett and Leuty Law Firm to talk about what happens when you don’t have a will.

So Jeff, let’s start with what happens when somebody passes away and there’s not a will.

Jeff Barnett: Well, the classic lawyer answer is, well, it depends.

Kim Barnes: So let’s start with the simplest. What’s maybe the simplest process or simplest situation?

Jeff Barnett: So the, so, if you happen to strike it lucky and, the person, maybe named all, maybe didn’t have any real estate, all they have is money or, or, or brokerage account and money and stuff like that, and they named beneficiaries on those accounts.

then it could be that no probate is needed at all. or if they did happen to have real estate and. By some weird chance they happen to have a lady bird deed or a transfer on death deed, then it could transfer that could transfer that way. And, and the, and the bank accounts or their other accounts can, can transfer, by, transfer on death or pay on death.

But that’s, that’s the most simple and, If, if you don’t happen to be that lucky, then there are, situations that you know, that, that either involve, the court or involve, an attorney drafting documents for you and recording them, with the, with the clerk’s office.

So you start out next, I guess, with the, the next, more complicated and that would be the, the smallest state affidavit. If, if someone dies with less than $75,000, in assets. not counting a house if, if they happen to own a house and, and there’s other types of assets, but we won’t go into all that.

But, but, but the, the $75,000 is the main threshold, and if you, and if you have less than that, then then you may be able to qualify. So for something called a smallest estate affidavit and, normally a small estate affidavit can’t transfer real estate. Like a home. but if, if the only, surviving, the surviving beneficiary, the, or the surviving heir on the, on the small estate affidavit is a spouse then, or, and also, a dependent child, could also qualify for that, then it can transfer real estate.

Kim Barnes: That smallest state affidavit, is that something you still go, you petition before the court, you need an attorney to help you with?

Jeff Barnett: Yes. So, it’s basically an affidavit that that recites for the court, who all the heirs are of the person.

And it’s gotta be signed by two disinterested witnesses, somebody who is not really part of the family, or if it is part of the family, it’s somebody really distant. But the trick is, the caveat is that, while they’ve gotta be distant like that, they have to know the family history.

They have to be able to truthfully attest to the fact that, oh, these are the person’s. Truthful heirs. The actual heirs. Okay. And you still go before the court to do that? You still go, well, you file the, the document with the court and then, and then if the court doesn’t have any problem with it, they, if they don’t have an issue, then basically the court will just sign, an order approving that smallest estate affidavit.

And then you go and you get it recorded in the, in the county clerk’s office if you need to. transfer real estate, or you just get certified copies of it and you take it to the bank or you take it to the brokerage company, that kind of thing. Okay, got it.

Mike Barnes: Let’s go back to if you don’t have a will and you don’t have anything else, you don’t have the lady bird deed, you don’t have the affidavits, you haven’t done anything with your bank. How difficult is it?

Jeff Barnett: So then it gets, it definitely gets a lot more complicated. Let me, let me run back to one other little thing, that, that I, that I didn’t touch on yet on the, and that’s something called an heirship affidavit. And that’s not to be confused with where I’m about to go and answer to your question right there.

An heirship affidavit, i, I is an affidavit that looks very similar to that small estate affidavit, but this doesn’t get filed with the court. it does get, signed by two disinterested witnesses. but then it gets recorded in the county clerk’s office and, and usually the, the, the piece of real estate or the pieces of real estate that, that the person had also are state are stated in the document and then it gets recorded in the county clerk’s records and it can act.

As, as if it were a deed. there are some title companies that don’t like those, so occasionally that’s not gonna be the best solution, an ideal solution.. But, but most of the time that that can, that can pass muster if that’s the situation. Okay. Now let’s get to the other thing. Oh

Kim Barnes: yeah, yeah.

’cause those are all situations that you’ve described are all ways to avoid typical probate.

Jeff Barnett: Right, right. All of those are avoiding, probate. I mean, the, the smallest state affidavit does get filed with the court, but, but there’s no hearings, there’s no con there’s no, complex situations with the court.

Nothing to do that, that, that, that causes things to get complicated or expensive. Okay. So, so now the other thing that you were, you asked, okay, so what if they, have real estate or, their, their estate isn’t, just $75,000, or, or it gets, more complicated.

Then you’ve gotta go through a proceeding called an heirship determination.. and that’s not, like a rocket ship. A-I-R-S-H-I-P. That’s an HEIR. Heirship, as in somebody’s heirs. So it’s a determination of, of who someone’s heirs are, and, the people that are, that are in, the immediate family of that person, of course, may know who the immediate family is, who the, who the heirs are, but the court doesn’t know.

So they have to do this, this proceeding and you, you file a, a, a petition, an application to, to determine the person’s heirs. The court appoints somebody called an attorney ad litem, who does an independent investigation as, as to who the person’s heirs are. they contact the family members, they contact dis as disinterested witnesses and disinterested people.

And they, they ultimately, help guide the court. They, they produce a report for the court, to help the court make its final determination of who the person’s heirs are. and then, then the court ultimately after a, a hearing. sometimes a contested hearing if, if there’s, if there’s some kind of dispute over who the heirs are or something like that.

But, the court has a hearing and then the court signs an order stating who the heirs are and who gets what percentage of the estate. And that’s all determined by state law. That kind of follows the, the, the thing that we lawyers like to say that if you don’t have a will.

The state of Texas has one for you, and it may not be exactly what you want it to be. So yeah, there’s the, there’s a statute that just says exactly who, who gets in what order, if somebody dies without a will. and it depends on whether they were married or if they had, previous marriages and if they had kids from previous marriages, or if all the kids are from this marriage or if they’re not married, So it is all different kinds of circumstances and, Anyway, so yeah, there, there’s the heirship determination and then, and, and, and I told you that, that, that the court makes that order and then if it’s just a matter of transferring, some real estate or something like that, you may not need administration with that.

and so you may just get that order and, and get a certified copy of it, record it in the county clerk’s office, and, and then you’re done. Or if there is a need for administration, in other words, there’s a need for somebody to be in charge, like an executor. But it’s, but it’s just somebody that, that has the more generic term, of a personal representative or, or an administrator.

And there’s a need for that because there’s more complex situations that need to be addressed. Then in addition to the determination of heirship, the court has to, you have to apply, to be an administrator in the case. And, and it’s, it’s usually the same person that would make an application to determine the heirs, so it’s not more people involved or whatever.

But, and if everybody can agree on who that person’s gonna be, then, then it does become a little bit simpler. But there’s still. Extra complexities and whatever. If, if everybody doesn’t agree and there and there’s a fight over who’s going to be the administrator, then it gets ugly.

Mike Barnes: Oh, I bet. And we know that with a will, it goes through probate. Is the determination of heirship, is that a even longer process than probate?

Jeff Barnett: Very much so. So, while a a a, an admin, a probate with a will, takes anywhere in Texas, from, 50 to 75 days, maybe 90 at the outside, in most cases, a, an heirship determination can easily last 6, 8, 9 months.

And even longer depending upon, and that’s, that’s, that’s when it’s uncontested. Yeah. If it’s contested and there’s a fight and, and you take depositions and you, and you have a big old fight and all that kind of stuff, it can take months or even, it can even go into years.

Kim Barnes: Wow. So it, it definitely gets really, really complicated. And for somebody who has a lot of assets. You could see the value of having a will, especially if it’s just that you want specific people to get specific things. Because I think what I can say is that the, based on the law, the judge or the court is just gonna say, well, you’re the spouse, so you get X percentage.

You’re the, you’re the, the two children, so you get this percentage, you’re a grandchild, or I don’t even know how, if it goes down that far, but, but they’re basically saying. That, that the, whatever things that dad might have said just in passing verbally don’t necessarily matter anymore.

Jeff Barnett: It doesn’t matter at all. In fact, I’ve even had people, who come in to see me to, to get a will done, and they’re like, what if I die before you even get this drafted? And I’m like, and they’re like, will that matter? I came here and I told you and you wrote it all down. no. It’s, even if that’s the case, and, and I have a clear picture of what, what’s going to be in the will.

It doesn’t matter. So yeah, it doesn’t matter, whether they’ve expressed it orally or whatever. there is something, that, It’s beyond the scope of what we’re doing here, but, but you know, if someone wants to do a a, a holographic will, a a will completely in their own handwriting, that can be, but no, I mean, outside of what we’re, talking about here.

Yeah. yeah. it just gets complicated. if, if there, there is, can you know a situation like that? Can

you give us a scenario that’s a, that is a, like, maybe a common one that you’ve seen, whether there’s, second marriages or things like that where without a will. It can just, get really ugly.

the step kid ends up getting money from this situation because there just wasn’t. You’re, again, the judge is just going down the, going down the list.

Yeah. Step kids, are nor are normally, not heirs of any kind. And so, step kids, even, even if they were, as close as the other, person’s, I mean as, as the person’s other children.

Yeah. don’t make any difference at all, to the court. and when it, Yeah, it can definitely get complicated because it’s not just, whether it’s a, whether you’re married or whether it’s a second marriage and whether it’s, you have kids from this marriage or, or, or kids from a prior marriage.

And, and, but it also gets down to do you have community property and do you have separate property? And again. kind of getting beyond the scope of, of, of, of this interview, But yeah, I mean, there’s so many different factors and, and, and that come into play and, and so, there’s lots of things to fight about.

There’s lots of things, that, that may, end up in, in convoluted. convoluted situations where, where people receive something that, that, that maybe, we’re not at all close to the, to the person who died. Yeah. or, or, or maybe, people receive it, to the detriment of the surviving spouse.

The surviving spouse may not have enough to live the rest of her life or the rest of his life, and, and because the, the kids from the prior marriage got half of the estate or, or, something like that. So.

Kim Barnes: You could have an estranged child or an estranged relative potentially back too.

Things that could get money could end up getting part of that, that maybe, that wouldn’t have been, wouldn’t have been their choice. Kind of the intent. The intent, yeah. Yeah. So it does, so yeah, it, it gets really complicated if you want people to be able to get what it is that you want them to. And I would imagine as you’re saying that, regular probate runs, a couple of months.

Typically if you’re looking at six to eight months or more going through this process, that also gets pretty expensive. And is that something Oh yeah. They need an attorney to help you walk through or can, is that something that people do on their own, or do you really need

Jeff Barnett: They cannot do it on their own?

in, in Texas, in some small counties, if you, if somebody’s probating a simple will or somebody has a, a, a very simple kind of situation, maybe a small estate affidavit. Some small counties, the, the judge will let somebody proceed without an attorney, but not in Travis, not in, Williamson, not in Dallas or, or Houston or any of the metros of those areas.

You have to get really far out in like, way, way West Texas or up in the panhandle. for a judge to be, lenient in that, in that regard, most, most. decent sized communities, the judge is gonna make you get an attorney and, and yes, with an heirship Yeah, it does get a lot more expensive.

Kim Barnes: Than, than the will would’ve been to start with.

Jeff Barnett: Exactly. Oh, way more expensive. I mean, wills are only, five, 600, $700, whatever. I mean, it’s not, it’s not an expensive thing. This is many thousands of dollars. And it, and, and it, like, I mean, a minimum one, in our office is.

Is something like the, six to $8,000. I mean, and that’s going absolutely smoothly and without any contest or anything like that. If, if it drags and, and whatever, it can easily be over 10, $15,000.

Mike Barnes: Wow. Well, well finally, Jeff, speaking of money, with all of your experience in a state law, I, I know you’ve seen people who say, well, I don’t wanna spend the money to get a will, or, I’m just not interested in getting a will, or, I don’t want to talk about getting a will or,

Kim Barnes: I’ll let y’all figure it out later.

Mike Barnes: Yeah. How do you convince them?

Jeff Barnett: you’ve gotta find what is their, their, their, their sensitive point in the sense of, sometimes it’s, about control. Sometimes it’s, about privacy. sometimes it is, about, it’s about their legacy or whatever, but.

Well, sometimes they don’t, they don’t understand, that, that, that, their legacy may not go the way that they want, if, if they don’t have one. So it’s really just sitting down and explaining to them, Hey, this is, this is your opportunity to, to.

Control your own legacy and to, and to, leave, to protect your surviving spouse. Don’t you wanna, don’t you want to, make things easy on mom? Don’t you wanna make things easy on your, your wife? Maybe it’s, it’s the second wife and, and it’s, it’s even, step kids that are talking to dad or whatever, don’t you wanna make it easy on, on, on your wife, when you pass, you don’t want.

You don’t want her to, go through and, and, and make people, or have people get, your, your estate that, that you really don’t want to have your estate. At least at that time and anyway, it’s, it’s, it’s, it’s, it’s tough. It’s sensitive to, it’s a sensitive topic, people don’t wanna face their own mortality, I’m sure.

but none of us get out of this life alive. And, and people, have to realize that. And, and, and the earlier they realize it, the better because like, like we’ve said in, in numerous occasion, on numerous occasions, it’s, you don’t know what your day is. Yeah. your day could be tomorrow, your day could be two weeks from now or two months from now.

it doesn’t have to be 40, 50 years from now. And, and, oh, I’ve got lots of time. It could be sooner and you never know. Yeah. Yeah.

Mike Barnes: Yeah. Well, great advice as always, Jeff Barnett, thanks so much for joining us today. All right. You’re welcome. Thank you. I tell you what I, I think what we, we learn here is that to protect, like, like Jeff said, your legacy.

You just have to go to the the, whether it’s the expense or the effort to make sure that everything is settled. Everything is handled because you wanna do what’s best for your family.

Kim Barnes: Absolutely. Yeah. And most fam, most parents, at the end of the day, they would want that. Sometimes they may just need help understanding what the implications are and the complexities that are involved if they don’t.

Mike Barnes: Exactly. Yeah. If you have any other topics you’d like us to discuss, please let us know. Parenting Aging Parents.

Mike Barnes:

*This transcript is auto-generated. Please excuse any typos or mistakes.