Probate is the process of transferring a person’s property after their death. If the person has a Will, the court oversees the distribution of the person’s assets to the heirs named in the Will. The probate process can be lengthy, time-consuming, and costly in some situations.
However, some estates do not need to go through the full probate process. If your loved one has just a few assets to transfer and died without a Will, talk to a Texas estate planning attorney about filing a small estate affidavit.
What is a Texas Small Estate Affidavit?
When someone dies without a Will, the Texas intestate succession laws determine who inherits the person’s property. The court appoints a personal representative (usually a family member) to locate heirs. State law determines the priority for inheritance and how to divide the inheritance between the heirs.
If your family member has modest assets, you can avoid a lengthy estate process by filing a Small Estate Affidavit. Using a Small Estate Affidavit can save you the time and expense involved in fully administering a person’s estate.
However, you must meet the legal requirements for a Small Estate Affidavit.
What Are the Requirements for a Texas Small Estate Affidavit?
The state must meet specific criteria to qualify for a Small Estate Affidavit. Qualifications for a Small Estate Affidavit are:
- 30 days have passed since the person died
- The person died without a valid Will
- No one has applied to be the personal representative of the estate
- The deceased person owed less than $75,000 in assets
- The assets in the estate are worth more than the estate debts, excluding mortgages or other debts secured by collateral
- All of the deceased heirs have been located and are willing to sign a Small Estate Affidavit
The $75,000 estate value does not include homestead property and other exempt property. Exempt property includes a vehicle and other personal property intended for the spouse and any children still living at home. Money in bank accounts is also considered exempt.
Small Estate Affidavits cannot transfer ownership in real estate other than the person’s homestead property. Therefore, if your loved one owned real estate other than their home when they died, you cannot use a Small Estate Affidavit.
How Do You File a Small Estate Affidavit in Texas?
You can obtain a Small Estate Affidavit from the probate court. Each heir or their legal guardian must sign the Affidavit. The Affidavit must have two witnesses and be notarized. A Small Estate Affidavit includes:
- Identifying information about the decedent
- A list of the person’s assets, their values, and whether they are exempt
- A list of the person’s debts and the amount of each debt
- The name and address of each heir (distributees)
- A statement regarding whether the person was formerly married and how that marriage ended or married at the time of death
- A list of the deceased’s heirs, including all children born or adopted and the deceased’s parents (if the deceased is not survived by parents or children, you must list all brothers and sisters)
The Affidavit is filed with the probate court with a filing fee. The judge reviews the Affidavit and signs an Order if all information is included and correct. There is no need for a court hearing.
Contact Our Texas Estate Planning Attorney for More Information
We can help you with a Small Estate Affidavit to ensure all information is included and complete. Our Texas estate planning attorney assists families in probating all types and sizes of probate estates. Contact our office to learn more about how we can help you with estate planning and probate matters.