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Legalease
Legalease, Attorney
Category: Estate Law
Satisfied Customers: 14510
Experience:  15 yrs experience: Elder Law, Wills, Social Security Issues
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My husband died with a will which clearly names my as heir.

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My husband died with a will which clearly names my as heir. I did not get it probated because there is no estate and we do not have the extra money. However, my husband did own mineral rights to 19 acres of land in Robertson County, TX for which he was receiving approximately $250 per year in royalties from a company that has put down oil wells. Now that company is telling me that I cannot be named as the recipient of the royalties because I have not had the will probated. I have filed an Affadavit of Heirship with Robertson County in a effort to substitute for probate, but, still the company states that they must, "by Texas law", consider his death as having been intestacy. Is this true? I actually don't care if the children split these funds, but, does an Affadavit of Heirship and a Clear will executed by an attorney mean nothing unless some other attorney makes money with a probate?? THANKS!
Submitted: 10 months ago.
Category: Estate Law
Expert:  Legalease replied 10 months ago.

Hello there.

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What county did your husband reside in when he passed away?

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Just to clarify - where there any individual bank accounts or assets that were in your husbands name alone at the time of his death or is it just the mineral rights? Or, after the heirship affidavit, is the mineral rights the only item outstanding?

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Once you answer these questions, please bear with me for about 15 minutes so that I can direct you to the small estate affidavit process and forms for your county -- it is a bit of research and I also type slowly !

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Thanks

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MARY

Customer: replied 10 months ago.


My husband passed away in Harris County, TX. He had no individual bank accounts, we had long since put all in my name because his passing was several years in coming, so we knew. The mineral rights is the only item outstanding now.

Expert:  Legalease replied 10 months ago.

Hello again Laura -

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A Texas small estate affidavit can be filed under the following conditions:
(a) The decedent has died without leaving a will. (b) There is no petition for personal representatives, either pending or granted. (c) A period of 30 days has passed since the death of the decedent. (d) The value of the entire estate is not greater than $50,000. This does not include Homestead and exempt property. Exempt property is that property that cannot be seized to pay debts under Texas law. (e) Two disinterested witnesses have filed a sworn affidavit affirming heirship.

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Because the value of the mineral rights seems to be less than 50K you can file a small estate affidavit if you are willing to let the "estate" (or what is left of it) be administered without a will as if your husband had died intestate (I am assuming that because you are the listed heir in the will and you stated above that you do not care if the royalties are split with his children, that you may be willing to do this in order to expedite the handling of these matters without having to hire a probate attorney and bring the matter into court for a full blown estate proceeding). Under the circumstances you simply need to complete a small estate affidavit and file it with the Harris county probate court clerk's office at which point the clerk will simply ask you to swear that everything is true and correct and the clerk will then stamp the affidavit and that sworn and stamped affidavit is enough to let you, as his "estate" administrator transfer any property that remains in his name (you will see on the small estate affidavit form that you must list the outstanding property in his name to be transferred (here you would list the mineral rights with as detailed a description as you can) and you will also have to list the heirs to the estate). Under the laws of intestacy, you are entitled to a 50% portion of his estate and his surviving children are entitled to the other 50% portion (which any or all of his children can sign those rights to receive the royalties back over to you once the small estate affidavit process has been completed at the clerk's office and the deed to the mineral rights has been transferred from your husband's name into your name and the names of the children at the Robertson County recorder's office). Here is a link to a Harris County TX small estate affidavit form that you can download and use for these matters -- http://www.harriscountytx.gov/CmpDocuments/48/Documents%20-%20Butts/SMALL%20ESTATE%20AFFIDAVITS.pdf -- (you may have to copy and paste the site into your browser if the link does not work) -- also, you may want to check with the Harris County clerk of the probate court to make sure that this is the latest form and is being used currently in their courts. The clerk's office can also give you the same form if you want to complete it by hand in front of the witnesses / notary public.

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Finally, because your husband resided in Harris County, the small estate affidavit must be filed and approved by the Harris county clerk and then it must be brought to the Robertson County clerk's office to transfer the deed to the mineral rights over to the heirs named in the small estate affidavit.

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While it seems complicated, it is a lot less complicated then the regular probate process and it consists of just a filing fee for the paperwork. Other than this small estate affidavit process, your only other choice is to submit the will into the Harris county probate court for a regular probate proceeding and I agree that at this point, with just the small amount of monthly mineral rights remaining to be dealt with, there is no point to having to pay a lawyer for the much larger probate process.

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I hope that helps. Please let me know if you have any questions.

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MARY

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Legalease, Attorney
Category: Estate Law
Satisfied Customers: 14510
Experience: 15 yrs experience: Elder Law, Wills, Social Security Issues
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