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My father passed a month ago leaving a truck and small amount of $ in the bank. Can we sell the truck and how do we get the $.

Longview, TX |

He owes a couple thousand on the truck and a $9,000 funeral bill. We would like to get the $ and pay off the funeral without hiring a probate attorney, but the bank isn't wanting to give us any information as to how much is in the bank or how to get it. Or allowing us to sell the truck without heirship.

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In Texas, there are two alternatives to the administration process; one where there was a Will, and one where the Decedent died intestate (i.e., without a Will). The first alternative is known as the collection of small estates upon affidavit, provided for in Texas Probate Code Sections 137 and 138.

If the Decedent had no Will, and the total value of the estate, not counting the value of the house and other exempt property, was less than $50,000, then you can file an affidavit with the probate court of proper jurisdiction (i.e., in the county where the Decedent was a resident), stating who the proper heirs of the estate would be, using the heirship rules of Texas Probate Code Section 38. Two disinterested witnesses have to swear to the heirship information contained in the affidavit. The small estate affidavit is inexpensive and in some cases can be done without an attorney.

Upon approval of the affidavit by the probate court, all persons or entities dealing with distributees of assets from the small estate are released to the same extent as if they dealt with a personal representative of the estate. Distributees can bring action to force delivery of the estate property and the distributees will be liable to any creditors or anyone else having a prior right to the property.

This procedure does not transfer title to real property, except for a homestead. Thus, if the Decedent owned real property other than the homestead, and had no Will, probably your only alternative is to proceed with a determination of heirship proceeding. A small estate affidavit usually works well with some assets, such as bank accounts, titles to automobiles, savings bonds and the homestead, but it is usually difficult to use the affidavit to transfer title to publicly traded stocks and bonds, partnership accounts, or brokerage accounts.

Good luck.

John Zgourides
(713) 876-7001

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Although not in strict compliance with the law, you can probably sell the truck if you have a death certificate and the original title. Most auto dealers will take the risk of an imperfect title. You won't be able to get to the bank account without a court approved process of some type, and the cheapest which is probably possible here, is a small estate affidavit. That still requires the assistance of an attorney.

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Thank you for your help.



How much would that normally cost in Texas?


I would proceed via an Affidavit for small estates to collect the bank account and transfer title to the truck.

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A small estate probate case seems the best route based upon the facts you have given. Small estate laws are meant to save time and expense for the survivors in dealing with a person's property. Call a qualified local probate attorney because the cost may not be as much as you think and you will have the peace of mind of knowing that the matter is handled properly.

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