Probating the Texas Estate of a Missing Person

At first glance, it might seem impossible to probate the estate of someone who is missing and presumed dead. However, the Texas Estates Code provides for this very process under Title 2, Subtitle J, Chapter 454 entitled, “Administration of Estate of Person Presumed Dead.”

That chapter clearly states that a probate court has the required jurisdiction to determine the likelihood of a person’s death when specific steps are followed — even if the main evidence presented is entirely circumstantial. However, the Texas Estates Code was carefully drafted to prevent fraud by requiring a lengthy delay before the assets of these types of estates can be distributed.

What are the main steps usually taken to probate the estate of a missing person?

  • Request for letters testamentary. After the probate process has begun with the filing of a request for letters testamentary, the court-appointed personal representative must serve a citation on the person presumed dead in the manner required by the court. Since the person is missing, this often means publishing a notice of the proceeding in one or more print newspapers – and in any other manner dictated by the court;
  • Contacting the proper authorities. The personal representative must then formally contact the proper authorities about the estate owner’s missing status. Among others, law

enforcement officials and state welfare agencies should be notified – along with any others suggested by the court;

  • A professional investigative agency should be hired. This must be done in keeping with the provisions of  Section 454.003 of the Texas Estates Code (requiring efforts to locate the missing owner of the estate). During this process, the investigator may encounter potential heirs who may have crucial information that can help locate the missing person – or help determine where s/he was living shortly before death.

The investigator should create a report based on all research and interviews conducted and then present it to the court – documenting that the missing person cannot be located. The cost of this investigation is normally reimbursed by the estate, after the court has had time to review the requested fees.

How quickly can the estate be distributed?

Section 454.004 of the Texas Estates Code clearly states that this can only be done after three years have passed since the date on which the letters testamentary were issued by the court to the personal representative.

What personal liabilities can arise if the person presumed dead reappears after distribution?

If the missing person returns and presents conclusive evidence that s/he was alive at the time the

letters testamentary were granted, that individual has the legal right to regain control of the estate — whatever remains of the funds or property.

However, this person who was presumed dead – yet has now reappeared – cannot get his/her property back that was sold for value to a bona fide purchaser. Instead, this person only has the right to the proceeds or funds obtained for the sale of the property to the bona fide purchaser.

In addition, Section 454.052 states that the personal representative who handled all the legal sales transactions for the estate, not knowing that the missing person was actually alive, cannot be held liable for any financial losses suffered by that individual who has now returned. And any surety who issued a bond to that personal representative cannot be held liable for anything the personal representative did while complying with approved court-ordered activities.

Should you need help probating any estate, please feel free to contact one of our Murray Lobb attorneys. We’ve had the opportunity to help many clients and can readily answer all your questions.

How Texas Estates Are Often Handled When Wills Cannot Be Found

Given how hard most people work to pay their bills and save up for their retirement years, you would think all of us would want to maintain strict control over who will inherit from us. Yet statistics reveal that only about forty percent (40%) of Americans have faced their mortality and asked their lawyers to help them create Wills.

When we make this error, we increase the chances that relatives we don’t know very well – or perhaps even like – may one day receive all our wealth. That’s regrettable since most of us have specific family members who would benefit the most from an inheritance. And great charities and faith-related beneficiaries can always use our funds to bless many others.

Hopefully, this article will help you see the advantages of meeting with your Houston estate planning attorney to create a first Will — and then later update it as your estate grows.

What are the five ways Texas wealth is often distributed when there is no Will?

  1. Under the state’s intestate succession laws. While these are useful, they do not let you determine who will inherit from you. Furthermore, if you own any of the following types of accounts or property, you must make sure that you’ve provided an updated list of beneficiaries to those who maintain these accounts (or other forms of wealth) on your behalf.
  1. Proceeds from a life insurance policy
  2. Retirement account funds that may include a 401k, IRA — or another, similar type of account
  3. Property that you and another person own together
  4. POD or payable-on-death account funds
  5. Property that’s already held in some type of living trust
  1. Through the filing of an Affidavit of Heirship. This approach can normally only be used when the assets requiring a title transfer are real estate. However, you can sometimes use this type of affidavit for non-property assets – depending on the rules of the institution that currently manages those items. Be prepared to discuss this topic in detail with your lawyer since there are certain limitations involved with using this type of affidavit.

For example, some title companies will not accept these types of affidavits when you’re trying to establish a legally valid chain of title for property. In addition, since no personal representative will be appointed, there won’t be anyone who can manage the estate’s assets and pay all required debts. Also, two witnesses must sign this type of affidavit and both are liable for any false statements that may be contained in it.

  1. By filing a Small Estate Affidavit. If your attorney takes this approach, he’ll first have to determine if the estate is solvent and if it’s worth $75,000 or less. In addition, the affidavit can only be used to transfer title to a homestead. Furthermore, there will be no appointed personal representative to collect all the assets, pay all required debts and deal with necessary third parties. Financially responsible witnesses must also sign this type of affidavit.
  1. Using a probate court proceeding called a determination of heirship. The advantages of this approach include having a hearing, the presentation of evidence and a court issuing a judgment accepting or rejecting all submitted affidavits of heirship. However, some relatives eager to settle an estate may find this approach less appealing since it can be rather costly – mainly due to the need to file various pleadings with the probate court. You must also coordinate everything with the court appointed attorney ad litem who will investigate whether there’s any possible fraud regarding the filed affidavits of heirship. However, obtaining a court ruling that specific parties are lawful heirs is very useful;
  1. Handling the matter as either an independent or dependent administration of the estate.

The difference between these two types of administrations is based on the degree to which the probate court must be involved in the proceedings. The term “independent administration” simply means that the court has minimal involvement.

Whichever approach is chosen, there will need to be an appointment of a personal representative who is qualified to receive letters of administration provided by the probate court. These “letters” allow the personal representative to collect all the assets and pay all the debts. The biggest drawback of this approach is that it’s often the most expensive way to handle the estate of someone who died without a Will.

Hopefully, this general information has helped you see that creating a Will is one of the best ways to move forward into a more stable financial future.

Please feel free to contact one of our Murray Lobb lawyers so we can answer any questions you may have about settling someone else’s estate — or drawing up a Will (or full estate plan) of your own. We appreciate the opportunity to help our clients handle these types of matters and look forward to hearing from you soon.

Not Having a Valid Will and Testament Can Become a Burden to Your Family

Many people assume that if they dies without a Last Will and Testament (“Will”), their property will just automatically pass to their spouse or children without any action required to be taken by their heirs, such as having to go to probate court. However, without proper estate planning, this is rarely the case.

While some assets in your estate necessitate having to go to probate court even with a Will, the process of probate court when you do not have a Will is much more time consuming and costly.

So long as there is a Will to probate that allows for independent administration, the probate process is relatively simple and straightforward and generally proceeds as follows: An application to probate a will is filed by the proposed Executor/Executrix with the probate court in the county in which you had your primary residence. Once the application has been on file with the court for a certain number of days, the Executor/Executrix will be allowed to set a hearing with the court where the court will appoint that person as Executor/Executrix, and that person will then take an oath. Once the Executor/Executrix has been appointed and taken their oath, Letters Testamentary (often called “Letters”) will be issued. It is these Letters that let third parties know the Executor/Executrix has the authority to act on behalf of your estate. Within three months after receiving Letters, the Executor/Executrix will be required to file an inventory, appraisement and list of claims or an Affidavit in Lieu of Inventory, which must be provided to all beneficiaries in the Will. Once Letters have been granted, your Executor/Executrix is able to take whatever steps and actions are necessary to administer your estate without any further court involvement.

When there is not a Will to probate, then there are several options that your family will need to consider and then decide on the best probate option based on the particular facts, circumstances and type of assets in your estate.

Dependent Administration: A dependent administration is the most common type of administration that is created when you die without a Will in place. In order to have your assets distributed, someone, usually a family member, must apply to the court to be appointed as dependent administrator. A dependent administrator MUST have court permission to take any action with regard to your estate such as distributing money, selling property, etc. The dependent administrator must also file an annual report every year that the administration is open, which is usually several years. Because of these factors, a dependent administration is very time consuming and costly to your family.

Independent Administration with Heirs’ Consent: There is a possibility that, if all of your heirs agree, they can ask the court to allow the agreed-upon applicant to serve as an independent administrator, without the requirement of court supervision (much like if you had died with a Will that allowed independent administration). However, this means that all heirs must agree upon the same person to serve as independent administrator and that all heirs are adults who have not been adjudicated incapacitated. While that seems easy enough, you will be surprised how the possibility of money can turn family against one another, and if you had a child who predeceased you but left grandchildren, then you may end up with a minor beneficiary who does not have the legal capacity to agree to such an appointment.

No matter if your family chooses to go the route of a dependent administration or an independent administration with consent, each of those options requires an additional step that is not required when you die with a Will. The court will be required to determine who are your legal and proper heirs, which is accomplished via a process called a “Heirship Determination” or “Judgment to Declare Heirs”.

In an Heirship Determination, the court will appoint an “attorney ad litem” whose job it is to determine that the heirs that are listed in the application for either dependent administration or independent administration with consent are true and accurate, that no heirs have been omitted, and to confirm that there are no unknown heirs. The cost for the attorney ad litem is paid by the decedent’s estate, and the costs can range anywhere from about $500 to a $1,000 or more depending on how much work the attorney ad litem is required to undertake to determine the heirs. However, as an estate has not yet been officially opened, the cost usually has to come directly out of the applicant’s pocket until the estate is opened, and then the applicant can be reimbursed by funds from the estate.

Even if you believe that you have taken all the steps necessary to have your assets pass directly to your heirs, it is important that you also execute a basic Will as a safety net for assets that are later acquired, assets that you forgot you owned, or in the event a direct beneficiary predeceases you. For example, 401(k) plans can pass outside of probate and directly to a specific beneficiary by listing them as a beneficiary on the required forms with your plan administrator. However, if you don’t list a beneficiary or the beneficiary you list predeceases you and you fail to update your beneficiary, then in order for your 401(k) funds to be distributed, the plan administrator will want authorization from the probate court. If you did not have a Will, then this would be accomplished via a Heirship Determination, at the minimum. However, if you had a Will, then this could be accomplished via the simpler and cheaper independent administration with the issuance of Letters Testamentary.

The extra steps that are required to administer your estate if you die without a will can be time consuming and a drain on your loved ones, both financially and emotionally.

At Murray | Lobb, we have the expertise in estate planning and probate matters to ensure that your passing does not become a burden on your family. We can assist you with executing a Will, updating a Will, executing a Statutory Power of Attorney, a Medical Power of Attorney and a Physician’s Directive (also known as a Living Will). While you are at our office executing your Will, be sure to ask us about the steps you can take to have most of your assets pass outside of probate and directly to your heirs.