The small estate affidavit is one of the alternatives to a full probate administration in Texas. It can provide a streamlined and inexpensive method for probating an estate.
When is the Small Estate Affidavit Used?
As its name implies, it is used for smaller estates with few assets. It is typically used for estates consisting of bank accounts with small balances and/or personal residences. It may also be used for larger estates if the majority of the assets pass outside of probate. The small estate affidavit generally cannot be used if the decedent had significant debts or the decedent owned rental or commercial real estate.
Requirements for the Small Estate Affidavit: Is there a limit?
Texas law provides several requirements that must be met for a small estate affidavit to be used:
- There was no last will and testament.
- At least 30 days have passed since the decedent died.
- No other person has filed a probate for the decedent’s estate.
- The decedent:
- Did not own any real estate or
- Only owned a residence used as a homestead* and the applicant is the decedent’s spouse or child.
- Excluding the value of the residence (in number 4(b), above), a vehicle, home furnishings, tools and livestock, the value of all other property is less than $75,000.**
- The estate is solvent, i.e., assets exceed liabilities.
- The decedent’s property will only pass to the decedent’s spouse or child.***
- All of the heirs agree to the affidavit.
* The term “homestead” means a separate (stand-alone) structure, condominium, or a manufactured (mobile) home. It can also include up to 20 acres of land.
** There are several other types of property that are to be excluded. Texas law defines this as non-exempt property, which is all property that is outside of the statutory list of exempt property. Exempt property is that property that is exempt by law from forced sale, including home furnishings, farm animals, and other property in the possession of the decedent at death, as well as decedent’s pension benefits, IRAs, and insurance benefits.
*** Texas law provides for the distribution of assets when there is no will. The heirs will vary based on whether the decedent was married, whether he had children, and who else is alive at the time the decedent died. Here is more information about what happens when a decedent dies without a will in Texas.
The formal notice requirements for probates are not always required with small estate affidavits. Some courts have chosen to require, at a minimum, poster citation for small estate affidavits to give at least some notice to creditors and the public.
Contents of the Small Estate Affidavit
Texas law provides several items that must be included in a small estate affidavit. This includes having the small estate affidavit sworn to by:
- Two disinterested witnesses,
- Each distributee of the estate who has legal capacity, and
- If warranted by the facts, the natural guardian or next of kin of any minor distributee or the guardian of any other incapacitated distributee.
The small estate affidavit must also:
- State that thirty days have passed since the date of the decedent’s death,
- State that no petition for appointment of a personal representative is pending or has been granted,
- Provide the value of the assets is less than $75,000, as noted above,
- Include a list of all known estate assets,
- Include the name and address of each distributtee,
- Include the relevant family history, and
- Include a list of any exempt assets.
The Texas probate courts and some county courts have created a standard application to help ensure that the affidavit includes information to satisfy these requirements.
Filing the Small Estate Affidavit
The small estate affidavit can generally be filed in any county in which probate could be initiated. There are a number of jurisdictional rules that apply in making this determination, some of which we addressed previously here.
The small estate affidavit is filed with the appropriate clerk for the probate court’s approval. Practices vary, but the probate court will likely require a court hearing before it approves the affidavit. The courts frequently reject small affidavits given non-compliance with the requirements and items that have to be included in the affidavit. It is common for the courts to require affidavits to be re-submitted to correct these compliance issues.
How to Use the Small Estate Affidavit
Once approved, the small estate affidavit can be provided to the decedent’s creditors, parties who have custody or possession of the decedent’s property, etc.
The small estate affidavit can also be filed in the appropriate clerk’s office to transfer title of the decedent’s homestead.
If a person to whom the affidavit is delivered refuses to pay, deliver, transfer, or issue property as called for in the affidavit, the applicant can use the courts to obtain the property.
Liability of the Small Estate Applicant
The small estate applicant is relieved of liability much as the personal representative is under a regular probate in Texas. This is true even if the applicant did not see the application or inquire as to the truth of the statements in the affidavit.
The distributees who receive property under the affidavit are still liable to any other parties who have a superior right or claim to the property. Moreover, any party who signs the affidavit is liable for any damage or loss to any person that arises from a payment, delivery, transfer, or issuance made in reliance on the affidavit.
The small estate affidavit can be helpful for relatively modest estates. It provides a relatively easy way to settle these estates.
Do you need to hire an Experienced Lawyer to help with a probate administration matter in the State of Texas?
If you are seeking to have someone else manage your estate after your death, you may be wondering if you need to hire an experienced attorney to help with a probate matter in Texas. A Small Estate Affidavit is a document that allows the transfer of assets from a deceased person to their heirs without going through the probate process. In order for this document to be valid, it must be signed by all interested parties, including any creditors of the deceased person. Once this document is signed, it must be filed with the county clerk in the county where the deceased person lived.
If you are considering using a Small Estate Affidavit as an alternative to Texas Probate, it is important that you seek out the advice of an experienced attorney. This is because there are certain requirements that must be met in order for the document to be valid. Additionally, an attorney can help to ensure that all interested parties are in agreement with the terms of the affidavit. Call us today for a FREE attorney consultation. (361) 502-4240
Related questions
What is a small estate affidavit used for in Texas?
A small estate affidavit is a legal document used in the state of Texas to settle the estate of a person who has died without leaving a will. The affidavit allows the decedent’s surviving spouse, children, or other relatives to avoid probate court by transferring the decedent’s property to themselves or to others in accordance with the decedent’s wishes.
The affidavit must be filed with the court and must be signed by all of the interested parties. The interested parties are those who would inherit the decedent’s property if there was no will. In order for the affidavit to be valid, the value of the estate must be less than $75,000.
The small estate affidavit is a relatively simple and straightforward process that can save time and money for the survivors of a person who has died without a will.
How do you get a small estate affidavit in Texas?
In Texas, you can get a small estate affidavit if your estate is worth less than $75,000. This is an alternative to going through probate, which can be costly and time-consuming. To get a small estate affidavit, you will need to fill out a form and have it signed by a notary public. You will also need to provide proof of death, such as a death certificate. Once the affidavit is filed with the court, the court will issue an order that allows the estate to be distributed without going through probate.
Does Texas have a small estate affidavit?
Yes, Texas does have a small estate affidavit. This type of affidavit can be used as an alternative to probate in certain situations. A small estate affidavit may be used when the value of the estate is less than $75,000, there is no real property involved, and all debts have been paid. The affidavit must be signed by all interested parties and filed with the county clerk.
How to fill out a small estate affidavit?
If you’ve been named the executor of a small estate in Texas, you may be able to avoid probate by filing a small estate affidavit. This document is filed with the court and allows the estate to be distributed without going through the formal probate process.
To fill out a small estate affidavit, you’ll need to gather some basic information about the deceased person and their assets. You’ll also need to provide the names and contact information for the beneficiaries of the estate. Once you have all of this information, you can begin filling out the affidavit.
The first section of the affidavit requires basic information about the deceased person, including their name, date of death, and place of residence. You’ll also need to provide their Social Security number.
Next, you’ll list all of the assets that are part of the estate. Be sure to include both real and personal property, such as homes, vehicles, bank accounts, stocks, and bonds. You’ll also need to provide an estimated value for each asset.
In the final section of the affidavit, you’ll name the beneficiaries of the estate and how they should receive their share of the assets. Once you’ve completed the affidavit, you’ll sign it
How long does a small estate affidavit take?
When it comes to estate planning, one of the questions that people often ask is how long does a small estate affidavit take? The answer to this question depends on a few different factors, but in general, the process can be completed relatively quickly.
One of the main factors that will affect how long it takes to complete a small estate affidavit is the size of the estate. If the estate is relatively small, then it will likely take less time to complete the affidavit. However, if the estate is larger, it may take longer to gather all of the necessary information and documentation.
Another factor that can affect the timeline for completing a small estate affidavit is whether or not there is any dispute among the heirs. If there is no dispute, then the process can move along more quickly. However, if there is a dispute, it may take longer to reach a resolution.
In most cases, it should not take more than a few weeks to complete a small estate affidavit. However, it is important to keep in mind that each situation is unique and some may take longer than others. If you have any questions or concerns about your specific situation, it is best to consult with an experienced attorney who can help guide you through the process.
