How Do I Collect a 401K of a Deceased After Five Years in Texas?
Full Question:
Answer:
The answer will depend in part on whether there was a will and the value of the estate. If small estate procedures may be used, an affidavit may be used to collect the assets of the deceased. Otherwise, it may be necessary to probate the estate and the passage of time will make that more complicated, so we suggest you consult a local attorney who can review al lthe facts and documents involved.
In Texas, no one is allowed to probate a will after four years have passed since the death of the testator. However, if a person was not responsible for the failure to present a probate case, and if they can present this by means of proof then there is still a way to get the process moving onward. When a person dies, their assets are distributed in the probate process. If a person dies with a valid will, an executor is named to handle the distribution of the estate. The court will issue testamentary letters to the executor, giving the authority to handle the affairs of the deceased. To dispose of the real property interests of the decedent, the executor executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies, the executor of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under the will. Assets held in trust, or in an account or policy with an insurer or financial institution with a named beneficiary, typically pass outside the probate process. Such assets go to the named beneficiary outside the probate process. If it is a survivorship account, or transfer on death account, it passes outside the probate process
In Texas, where the value of the entire assets of the estate, not including homestead and exempt property, does not exceed $50,000, a small estate may be administered by a small estate affidavit. After the affidavit has been approved by the court, the affidavit may be used to collect debts owed to the decedent.
The affidavit is filed with the clerk of the court in the county where the deceased resided. It lists certain information required by statutes, such as all of the known assets and liabilities of the estate, the names and addresses of the distributees, and the relevant family history or other facts concerning heirship that show the distributees' rights to receive the money or property of the estate. Once approved by the court, the affidavit may be presented to those who owe debts to the deceased in order to collect the property or money owed. Policies regarding distribution without an affidavit vary by company policy.
We can assist you with searching to locate forms or we can draft and add forms you may need to our database. However, we cannot advise you to use one particular form over another. We can show you what is available. Please see the forms at the links below to see if they meet your needs or let us know if you would like us to draft a form to meet your needs. You may order forms online or by phone by calling Toll Free: 1-(877) 389-0141 - 8:30-5:00 Central Time Zone Monday – Friday..
Please see the following TX statutes:
§ 73 PROB. CODE Period for Probate
[EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE UNTIL JANUARY 1,
2014.]
(a) No will shall be admitted to probate after the lapse of four years
from the death of the testator unless it be shown by proof that the party
applying for such probate was not in default in failing to present the
same for probate within the four years aforesaid; and in no case shall
letters testamentary be issued where a will is admitted to probate after
the lapse of four years from the death of the testator.
(b) If any person shall purchase real or personal property from the
heirs of a decedent more than four years from the date of the death of
the decedent, for value, in good faith, and without knowledge of the
existence of a will, such purchaser shall be held to have good title to
the interest which such heir or heirs would have had in the absence of a
will, as against the claims of any devisees or legatees under any will
which may thereafter be offered for probate.
§ 74 PROB. CODE Time to File Application for Letters Testamentary or
Administration
[EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE UNTIL JANUARY 1,
2014.]
All applications for the grant of letters testamentary or of
administration upon an estate must be filed within four years after the
death of the testator or intestate; provided, that this section shall not
apply in any case where administration is necessary in order to receive or
recover funds or other property due to the estate of the decedent.
§ 137 PROB. CODE Collection of Small Estates Upon Affidavit
[EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE UNTIL JANUARY 1,
2014.]
(a) The distributees of the estate of a decedent who dies intestate
shall be entitled thereto, to the extent that the assets, exclusive of
homestead and exempt property, exceed the known liabilities of said
estate, exclusive of liabilities secured by homestead and exempt
property, without awaiting the appointment of a personal representative
when:
(1) No petition for the appointment of a personal representative is
pending or has been granted; and
(2) Thirty days have elapsed since the death of the decedent; and
(3) The value of the entire assets of the estate, not including
homestead and exempt property, does not exceed $50,000; and
(4) There is filed with the clerk of the court having jurisdiction and
venue an affidavit sworn to by two disinterested witnesses, by all such
distributees that have legal capacity, and, if the facts warrant, by the
natural guardian or next of kin of any minor or the guardian of any other
incapacitated person who is also a distributee, which affidavit shall be
examined by the judge of the court having jurisdiction and venue; and
(5) The affidavit shows the existence of the foregoing conditions and
includes a list of all of the known assets and liabilities of the
estate, the names and addresses of the distributees, and the relevant
family history facts concerning heirship that show the distributees'
rights to receive the money or property of the estate or to have such
evidences of money, property, or other rights of the estate as are found
to exist transferred to them as heirs or assignees; and
(6) The judge, in the judge's discretion, finds that the affidavit
conforms to the terms of this section and approves the affidavit; and
(7) A copy of the affidavit, certified to by said clerk, is furnished
by the distributees of the estate to the person or persons owing money to
the estate, having custody or possession of property of the estate, or
acting as registrar, fiduciary or transfer agent of or for evidences of
interest, indebtedness, property, or other right belonging to the
estate.
(b) This section does not affect the disposition of property under the
terms of a will or other testamentary document nor, except as provided by
Subsection (c) of this section, does it transfer title to real property.
(c) Title to a decedent's homestead that is the only real property in a
decedent's estate may be transferred on an affidavit that meets the
requirements of this section. An affidavit that is used to transfer
title to a homestead under this section must be recorded in the deed records of
a county in which the homestead is located. A bona fide purchaser for
value may rely on a recorded affidavit under this section. A bona fide
purchaser for value without actual or constructive notice of an heir who
is not disclosed in a recorded affidavit under this section acquires
title to a homestead free of the interests of the undisclosed heir, but
the bona fide purchaser remains subject to any claim a creditor of the
decedent has by law. A purchaser has constructive notice of an heir who
is not disclosed in a recorded affidavit under this section if an
affidavit, judgment of heirship, or title transaction in the chain of
title in the deed records identifies the heir of the decedent who is not
disclosed in the affidavit as an heir of the decedent. An heir who is not
disclosed in a recorded affidavit under this section may recover from an
heir who receives consideration from a purchaser in a transfer for value
of title to a homestead passing under the affidavit.
(d) If the judge approves the affidavit under this section, the
affidavit is to be recorded as an official public record under
Chapter 194, Local Government Code. If the county has not adopted a
microfilm or microphotographic process under Chapter 194, Local Government
Code, the county clerk shall provide and keep in his office an appropriate
book labeled "Small Estates," with an accurate index showing the name of the
decedent and reference to land, if any, involved, in which he shall
record every such affidavit so filed, upon being paid his legal recording
fee.