My aunt died in Dec 2011 and left no will. She has money in her bank accounts but no beneficiary. What can I do to get a letter of testamentary without going through a lawyer, and do I have to do it in the County in which she presided? Her bank is a statewide bank.
While the Probate Code is not specific, many courts require that all parties filing for letters of testamentary have an attorney to represent them. The main reason for this is because the probate process, notice requirements, etc can be confusing. The courts also want to protect creditors of the deceased.
The Texas Probate Code allows for a probate matter to be filed in the county where the deceased resided, if she had a fixed residence in this State. If the deceased had no fixed residence in this State but died in this State, then either in the county where her principal property was at the time of her death, or in the county where she died. If she had no fixed residence in this State, and died outside the limits of this State, then in any county in this State where her nearest of kin reside. But if she had no kindred in this State, then in the county where her principal estate was situated at the time of her death.
Good luck!
You may be able to use a simplified procedure called a small estates affidavit to have funds distributed to her heirs - if you can identify the heirs and find witnesses to attest to the identities of the heirs. Even then, you'll likely need an attorney to assist in preparing and filing the affidavit with the court.
Lawrence Frederick Dietlein Jr.Estate Planning AttorneyHouston, TX ·
I am sorry for your loss. Generally speaking, when someone dies without a will, then an heirship proceeding is usually necessary. This is the process whereby the Court declares the heirs of the estate and involves the appointment of an attorney ad litem. Depending upon the size of the estate, a Small Estate Affidavit ("SEA") is often helpful. You can hire an attorney to help you with this, or you could contact the probate clerk in the appropriate County who may be able to direct you to the form they offer the public for small estates. A SEA is used when the decedent dies without a will and with an estate that is not worth more than $50,000 (excluding the homestead and any exempt property), as long as no application for administration has been filed or granted. The SEA sets out who the distributee's relative share of the estate, and may not be filed until 30 days have passed since the decedent's death. A distributee is entitled, upon presentment of a certified copy of the affidavit, to collect any property of the estate. The SEA is not appropriate in all intestate situations where the estate value does not exceed $50,000. If the estate includes real property which is not the decedent's homestead, use of the SEA will not serve to transfer title to that property. Use of the SEA should also be avoided in situations where there is some potential of an unknown heir being discovered in the future, because any heir not listed in the affidavit will be able to recover his share of the estate or of any proceeds received by the other heirs from sales of estate property. The SEA, like the affidavit of heirship, does not have the finality offered by a determination of heirship. The only document that must be filed in order to establish a small estate is the SEA. The affidavit must specifically state that no application for an administration has been approved or is pending, that 30 days have not passed since the decedent's death, and that the value of the estate is not more than $50,000 excluding the homestead and other exempt property. The names, addresses and interest in the estate of each distributee must be set out along with a description of all known assets and debts of the estate. The affidavit must be sworn to by two disinterested witnesses and by all of the distributees. If there is a minor or otherwise incapacitated distributee, the parent or guardian must swear to the affidavit on behalf of the minor or incapacitated person's behalf. The order approving the SEA is generally filed as an attachment to the affidavit. There is no need for citation to issue or any other form of notice to be served, as all interested parties have signed and sworn to the information in the affidavit. The court may approve the affidavit at any time, there is no need to set up a formal hearing date. Once the affidavit is approved, no further contact with the probate courts is necessary, and the distributees may use certified copies of the affidavit to collect and wrap up any other business of the estate. Best of luck to you.
