I am sorry for your loss. In Texas, there are several choices with respect to what type of probate is best in any particular matter. Choosing the correct option depends upon the assets (and debts) involved and if the heirs are in agreement on certain matters. If no formal administration of the estate is necessary, there are two options: 1. Small Estate Affidavit (estates of $50,000 or less, excluding homestead, and no debts other than perhaps a mortgage); or 2. Proceeding to Determine Heirship. If an administration is necessary, as may be the case here, there are still two options: 1. Independent Administration (if all heirs agree on the appointment of an IA); or 2. Dependent Administration (when all the heirs do not agree on the appointment of the administrator; or if the Administrator wants the Court to be involved with managing the debts and creditors; DA is the more expensive route). If either of these latter two options (IA or DA) is chosen, then along with the administration filing/proceeding, the administrator will also need to file an Application to Determine the Heirs (and the appointment of an ad litem attorney to assist the Court in determining the heirs of the estate). Often, when dealing with lots of debt and many creditors, a Dependent Administration is best since there are very strict guidelines that creditors must follow or their claims against the Estate are bared.
How the property will be distributed in an intestate estate, depends upon the circumstances. For instance, in Texas, if the children of the Decedent are not the children of the surviving spouse, then the Decedent's property (that is subject to probate) is distributed as follows:
Real Property: 1/2 to Decedent's children, equally; 1/2 retained by surviving spouse (SS).
Personal Property: 1/2 to Decedent's children, equally; 1/2 retained by SS.
Real Property: All to Decedent's children, equally, subject to life estate for SS; SS gets a life estate.
Personal Property: 2/3 to Decedent's children, equally; 1/3 to SS.
I suggest that you speak with an experienced probate attorney to help you through this journey. Again, I am sorry for your loss and wish you the best of luck.
Without a Will, you and your brother have an interest in estate. The wife does have a life estate. You need to talk to an attorney about your intestate rights.
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