One factor that often motivates people to choose a revocable trust over a Will is privacy. Assets held in a trust pass to beneficiaries without going through probate, which means there’s no public filing of estate details.
But for those who prefer a Will-based plan, Texas law offers a way to maintain privacy during probate as well. Under Section 309.056 of the Texas Estates Code, an independent executor may file an affidavit in lieu of the traditional inventory, appraisement, and list of claims. This keeps the details of the estate out of the public record.
How the Affidavit in Lieu of Inventory Works
When someone dies with a Will that names an independent executor, Texas law ordinarily requires the executor to file an inventory with the court within 90 days. That inventory becomes a public record, available for anyone to review.
Section 309.056 provides an alternative. If all unsecured debts have been paid by the time the inventory is due, the independent executor may file a simple affidavit instead. The affidavit states that:
- All debts, except for secured debts, taxes, and administration expenses, have been paid, and
- All beneficiaries entitled to receive one have been provided a verified, full, and detailed inventory.
The executor still prepares the inventory, but it goes directly to the beneficiaries rather than being filed with the court.
Exceptions for Certain Beneficiaries
Not every beneficiary must receive a copy of the inventory. The law provides that an independent executor is not required to provide the inventory to a beneficiary who:
- Is entitled to receive property valued at $2,000 or less,
- Has already received everything they’re entitled to under the Will, or
- Has waived in writing their right to receive the inventory.
These exceptions simplify the process when beneficiaries have small inheritances or have already been paid.
Interested Persons Can Still Request the Inventory
Even when an affidavit is filed, the inventory isn’t completely inaccessible. Any person interested in the estate, including a potential heir or a beneficiary under a prior Will, may request a copy of the inventory from the independent executor in writing. If the executor doesn’t comply, the interested person can ask the court to compel disclosure.
This strikes a balance. The inventory stays out of the public record, but those with a legitimate interest can still obtain it.
Requirements and Limitations
The affidavit option is only available when certain conditions are met:
- The estate must be under independent administration.
- All unsecured debts must be paid before the filing deadline.
- The Will must not specifically prohibit the use of an affidavit.
Secured debts, taxes, and administration expenses may still be outstanding. But credit cards, medical bills, and other unsecured obligations must be resolved before the affidavit can be filed.
The affidavit must be filed within 90 days after the executor qualifies, unless the court grants an extension.
Privacy in Probate Is Now an Option
For many years, privacy was a reason people chose trusts over Wills. The affidavit in lieu of inventory gives families another option. When the estate qualifies, the details of what someone owned and who received it can remain a private matter between the executor and the beneficiaries.
If you have questions about whether this option is right for your situation, an experienced estate planning or probate attorney can help you understand your choices.
