In a previous post, I discussed how property owned by a Texas resident is distributed when they pass away without a Will. I emphasized that without a Will, you are essentially allowing the State to decide who inherits your assets upon your death.

The dangers of dying intestate are not limited to the distribution of your assets. It is more expensive and troublesome to administer an estate where there was no Will than one where even the simplest of Wills was created. The reason has to do with the dual hearings that must be had to appoint an administrator for the estate and the possibility of a "dependent" administration.

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How Do Heirs Get Their Estate Distribution When There's No Will?

In the absence of a Will, Texas law determines the heirs. However, for this law to be recognized by financial institutions and real estate companies, an heirship proceeding must occur in the local probate court or county court at law. This legal process ensures a judge officially declares the rightful heirs, clarifying their entitlements to the estate's assets. The costliness of this process compared to standard probate arises from the legal requirement for the probate court to appoint an attorney ad litem. This attorney represents the interests of any unknown heirs, adding to the expenses as heirs must cover both the estate's attorney and the ad litem, whose fees can range from $600 to over $1,000, depending on the complexity of identifying all potential heirs. Such an appointment is unnecessary if a valid Will exists. Additionally, the estate's attorney must publish a notice in a local newspaper to inform all potential heirs, costing between $100 and $200, a step not required with a valid Will. The primary issue with not having a Will is that it subjects the estate to 'dependent' administration rather than 'independent' administration. Texas allows for independent administration, where the executor named in the Will can manage the estate without court oversight, saving time and legal fees. The executor can sell property, pay expenses, and distribute assets without court approval or posting a bond, provided the Will waives this requirement. In contrast, dependent administration involves court supervision of every action by the administrator, who must seek court approval for all estate-related activities. The administrator must also submit an accounting to the court detailing every expenditure, a process that, while theoretically beneficial, is costly and time-consuming, potentially prolonging the administration for months. Furthermore, the administrator must post a bond equal to or exceeding the estate's total value.

Can there still be an independent administration of the estate if there is no Will? 

While all the distributees of the estate can agree on an independent administration, and even the waiving of a bond, if there are any minor distributees (i.e., anyone under 18), almost all probate courts in Texas will decline to appoint an independent administrator because the goal is to protect the interests of any minors.

In a future post, I will discuss the special problems associated with minors receiving property in Texas through inheritance or under a Will without it passing in trust, and why guardianships are as big a problem as dependent administrations. The moral, of course, of all of this is that just because you do not have a lot of assets does not mean you do not need a Will. The simplest of Wills can help avoid the delays and costs associated with intestacy and provide for a smooth transition of your estate to your loved ones.