One of the challenges faced by those who have lost a loved one is determining the nature, location, and value of the deceased’s assets. Especially in cases of sudden or unexpected death, the deceased may not have had the foresight to name death beneficiaries for their bank accounts, retirement accounts, and the like, or to write down their account information in case a family member needed emergency access. This can place the deceased’s surviving family in the vexing position of needing to know the size of the estate so that they can decide whether it would be worth the expense of taking it through probate, but being unable to access the deceased’s account information without the authority of a court-appointed executor or administrator.
The drafters of the Texas Estates Code foresaw this type of problem and provided prospective probate applicants some tools for investigating the assets of a deceased person. One such tool is found in Chapter 153 of the Estates Code. Section 153.003 of the Code permits an “interested person,” defined as “an heir, spouse, creditor, or any other having a property right in or claim against the decedent’s estate,” to apply for a probate court to issue an order instructing a financial institution to release the deceased’s account balances to the person named in the order, subject to certain conditions. For a Chapter 153 application to be granted, the deceased must not have had a valid will in place at their death, 90 days must have passed since the deceased’s death, there must not be any pending application for appointment of an executor or administrator for the estate, and no person can have been issued letters testamentary or letters of administration over the estate. The Chapter 153 application is designed to help those with a financial stake in the estate of who died intestate gather information about the financial assets of the deceased without having to first probate the estate.
One of the most common uses for a Chapter 153 application is to help determine whether a decedent’s estate qualifies for a Small Estate Affidavit under Chapter 205 of the Estates Code. The Small Estate Affidavit is an alternative to intestate administration that is intended to facilitate the distribution of modest estates without the appointment of an administrator or executor. It involves the filing in court of a sworn statement, attested by disinterested witnesses, that identifies the heirs of a deceased person and lists that person’s assets. If approved by the court, the Small Estate Affidavit has the effect of authorizing financial institutions such as banks to release the deceased’s funds directly to the heirs.
There are a number of conditions that must be true for an estate to qualify for the use of a Small Estate Affidavit, the most relevant to this discussion being that the deceased’s non-exempt assets must not exceed $75,000 in value. More specifically, the party filing the Small Estate Affidavit must be able to attest under oath that the value of the non-exempt assets is not more than $75,000. This presents a problem when the exact balance of the deceased’s bank account is unknown to the heirs. For example, in a scenario this firm encounters frequently, a deceased person’s only non-exempt asset of any significant value may be a savings account the exact balance of which cannot be verified because the deceased did not grant any of their family members access to it. While the heirs may strongly suspect based on their knowledge of the decedent that their account contains less than $75,000, no witness can truthfully attest to that fact from personal knowledge, which is a prerequisite to the Small Estate Affidavit.
This is where the Chapter 153 application comes in handy. The heirs, as interested persons, can ask the probate court to order the deceased’s bank to disclose the balances of all accounts that the deceased held with them. With that knowledge, the heirs can determine whether the money in the account, together with the deceased’s other non-exempt assets, exceeds the limit for a Small Estate Affidavit. Depending on the county, it may be possible to amend the Chapter 153 application to request approval of a Small Estate Affidavit or to seek an intestate administration, thereby avoiding having to pay another $300-$400 filing fee.
If you are dealing with the passing of a family member who did not leave a will, an experienced Texas probate attorney can help find the most cost-effective way to make sure that the deceased’s assets are distributed to the lawful heirs.
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