What is a Small Estate Affidavit?

Some people die without a Will but have very little in terms of probate assets. They may have owned a modest home, and had a small checking and savings account, but nothing more. In such situations, probate seems like overkill.

“Is there an easier way?” I often get asked.

In Texas, heirs can take advantage of a Small Estate Affidavit procedure in certain limited situation. Heirs can file a Small Estate Affidavit if:

  1. The deceased person died without a Will;
  2. At least 30 days have passed since the date of death;
  3. No person has filed an application to be appointed as personal representative of the estate;
  4. The value of the probate estate is $50,000 or less, not counting the value of the homestead and other exempt property; and
  5. The total assets (not counting homestead and exempt property) exceed the total known debts of the estate (exclusive of debts secured by homestead and exempt property).

The affidavit must list all know estate assets and liabilities, the name and address of each distributee, and the relevant family history that shows how who the heirs are are what percentage of the estate they inherit under the intestacy statutes.

It must also be signed by two disinterested persons, all distributees of the estate who have legal capacity, and the natural guardian or next of kin of a minor or an incapacitated heir.

Once the affidavit is complete, it should be filed with the probate court, which will review the affidavit to confirm that it complies with the statutory requirements.  If approved, a certified copy of the affidavit can be used by the distributees of the estate to collect money owed to the estate or assets owned by the estate.

Small estate affidavits do not ordinarily transfer title to real property, except for the homestead. Therefore, if the decedent owned real property other than the homestead, a small estate affidavit would not work.

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