Liberty County Clerk Fees for 2024: Probate and Guardianship Included
Texas Law Library List of Common Probate Forms
PROBATE OF A WILL:
To begin the process, an Application for Probate will need to be filed in a Liberty County Court. Generally, you have four years from the date of death to the filing of an application for probate.
Once the Application has been filed, Texas Estates Code requires that you must wait approximately two (2) weeks before you can have a hearing on the probate application. During the two (2) week waiting period, the County Clerk posts a notice at the courthouse that an application has been filed for probate. This posting serves as notice to anyone who might want to contest the will that they have a certain number of days to do that. If they fail to file their contest within that period of time, the court can move forward in recognizing the validity of the will.
Once the waiting period has passed, a hearing will be conducted before the County Court assigned to the case. At that time, the judge will recognize that the decedent has died, that the court has jurisdiction of the case, that the person applying to be the executor is qualified to serve, and that the decedent died with a will that was valid.
Once a will has been probated, a will can be contested anytime after the will is offered, and up to two (2) years after the will has been admitted to probate. Before probate is filed, the only items that can be removed are the deceased's will (which must be turned over to the court representative for tender to the probate court), a burial plot, or a life insurance policy made payable to the named beneficiary.
SMALL ESTATE AFFIDAVIT:
The Small Estate Affidavit can be used if ALL of the following conditions apply:
- The deceased person died WITHOUT a will. If there is a will, a small estate affidavit CANNOT be used whether the will has been offered for probate or not.
- More than thirty (30) days must have passed since the date of death.
- The only real property owned by the Decedent must be the homestead. Title to other real property is unaffected by the small estate affidavit. A small estate affidavit cannot be used to transfer title to any other real property other than the homestead.
- The debts of the Decedent (other than a mortgage on the homestead) must not exceed the assets of the Decedent (not counting homestead and exempt property) and there must be no other reason to have a person appointed to handle the business of the Decedent's estate.
- No estate administration has been opened or if an application to open one has been filed, no order has yet been entered granting letters of administration.
- The Decedent must have had a permanent place of residence in this county at the time of his or her death.
- All of the assets of the Decedent (not counting homestead and exempt property) are not more than $75,000.00, on the date of the affidavit.
- It cannot be used to exclude any heir.
- It cannot be used if any of the heirs are under the age of 18 or incapacitated.
How to fill out a Small Estate Affidavit:
- The affidavit must be completed by persons with actual knowledge of the facts stated and signed by ALL distributees (heirs).
- Also, two persons who have personal knowledge of the family history facts and who have no financial interest in the Decedent's estate ("disinterested persons") must sign and swear to the affidavit.
- All persons who sign the affidavit (whether heirs or disinterested persons) must personally appear before a Notary Public and swear to the contents of the affidavit.
- Assets and liabilities must be identified and described and all values must clearly be set out with all assets designated as separate or community property.
- All assets must be listed with a physical address of where the asset is located and with the current market value as of the date of the Decedent's death.
- The heirship of the Decedent must be set out, with
- the names and addresses of all heirs shown
- their relationship to the Decedent and
- the share each heir will take shown
(A chart explaining heirship division is attached to this sheet.)
- All marriages, divorces or deaths of spouses and births and deaths of children must be listed:
- If any children or descendants of the Decedent are NOT also children and descendants of the surviving spouse, this fact must be shown.
- If any other person survived the Decedent other than children, such as parents, grandparents, brothers and sisters, half-brothers and half-sisters,. or other people, this fact must be shown.
- No one is the heir of a living person, so that, if a child of the Decedent would inherit a share, that child's children would not inherit from the Decedent.
LIBERTY COUNTY SMALL ESTATE AFFIDAVIT form.
APPLICATION FOR DEPENDENT ADMINISTRATION/ INDEPENDENT ADMINISTRATION/ HEIRSHIP DETERMINATION:
Given that there are multiple variables affecting the division of assets when the decedent has died without a will, it is highly recommended that you speak to an attorney experienced in the matters of probate before proceeding.
Determination of Heirship Issues:
When someone dies without leaving a will, the court can conduct a formal Determination of Heirship, after an application has been filed by a qualified person. During this process, the court will make a formal declaration as to the identity of the decedent’s heirs at a hearing, and based on evidence presented by the applicant and the report of the Attorney Ad Litem. Pursuant to that declaration of the heirs, the attorney enters an order determining who the decedent’s heirs are and their respective shares of the decedent’s estate. Then, the decedent’s property can be divided and distributed among the heirs.
Affidavits of Heirship:
An Affidavit of Heirship is generally used when someone died without a will, without any outstanding debts at the time of death, and left only real estate in the State of Texas. Instead of going through the probate process to have title to the property transferred to the decedent’s heirs, the heirs can, instead, file the Affidavit of Heirship in the deed records of the county in which any piece of real estate owned by the decedent lies. According to the provisions of the Estates Code, the affidavit must be signed and sworn to by two disinterested witnesses, i.e. two people who knew the Decedent and his family history but do not stand to gain anything financially from the estate, and preferably not related by blood or marriage to the decedent.
Once the affidavit has been signed and recorded in the deed records of the county, it has the effect of linking the chain of title in the decedent’s real estate to their heirs. At that point, most title companies and real estate companies will allow the heirs to sell the property. A form for the affidavit can be found in Section 203.002 of the Texas Estates Code. The Affidavit of Heirship form from the Texas Comptroller of Public Accounts is provided below. As with all estate matters, consultation with an attorney is recommended.
AFFIDAVIT OF HEIRSHIP FORM (TEXAS COMPTROLLER)
POWER OF ATTORNEY ISSUES:
A power of attorney document is valid only during the principal’s lifetime, not after death. This means that if you’ve been an agent for a loved one, you’re unable to help handle estate affairs after your loved one dies without additional authority. After your loved one dies, the executor of the estate will step up and take charge of financial decisions and other estate affairs.