The Texas Estates Code defines “survivorship” and how to pass property by survivorship. Basically, it is property that passes by contract to the “survivor” of the named parties to an account (IRA, bank, brokerage, life insurance, etc.). A common survivorship property is a bank account that contractually passes by survivorship. DO NOT ASSUME A JOINT ACCOUNT IS SURVIVORSHIP PROPERTY. It must have the legally required survivorship language in the contract and be clearly accepted by the owners of the account. Many banks have survivorship agreements that do not meet the requirements of the statute. Some forms of survivorship property are more common in “common law” states than in “community property” states like Texas.
What happens if the estate has more than $100,000.00 in probate assets, not including the homestead, or has more than one creditor and there is no properly drafted will?
Someone will need to apply to the Court to determine the heirs and possibly for an administration. The Court will appoint an independent attorney (called Attorney Ad Litem) to represent any minor heirs and the unknown heirs. The current fee of $400.00 for the attorney ad litem must be paid at the time the application is filed in addition to the filing fee. At the hearing the applicant will need to present two witnesses as to the family history of the decedent who can on personal knowledge testify as to who are the children and surviving spouse, if any, of the Decedent. Testimony about the existing property in the estate must also be provided to the Court. This hearing can be and often is combined with the hearing regarding the need for an administration and appointment of the administrator.