What is a Small Estate Affidavit?
Occasionally, 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.
Their loved ones often ask: “Is there an easier way?”
What is Considered a Small Estate in Texas?
In Texas, heirs can take advantage of a Small Estate Affidavit procedure in certain limited situations. Heirs can file a Small Estate Affidavit if:
- The deceased person died without a Will;
- At least 30 days have passed since the date of death;
- No person has applied for appointment or is currently serving as a personal representative of the estate;
- The value of the probate estate is $75,000 or less, not counting the value of the homestead and other exempt property; and
- 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).
What Information Must Be Included in the Affidavit?
The affidavit must list all know estate assets and liabilities. It must also include the name and address of each heir, and the relevant family history that shows how who the heirs are and what percentage of the estate they inherit under the Texas intestacy statutes.
Two disinterested witnesses must sign the affidavit. Additionally, all heirs of the estate who have legal capacity, and the natural guardian or next of kin of a minor or an incapacitated heir, must sign the affidavit.
Once the affidavit is complete, it is necessary to file it with the probate court. The court will review the affidavit to confirm that it complies with the statutory requirements. If it meets all the statutory requirements, the court will approve the affidavit.
What is the Purpose of a Small Estate Affidavit?
A small estate affidavit is a cost-effective way to transfer property to a deceased person’s heirs. If the court approves the affidavit, heirs can use a certified copy of the affidavit to collect money creditors owe to the estate or assets that belong to the estate.
Can I Use a Small Estate Affidavit to Transfer Real Estate?
Small estate affidavits do not ordinarily transfer title to real property. There is an exception for homestead property when there is a surviving spouse or minor children who resided on the property. If there is no surviving spouse or any minor children who resided with the deceased person, a small estate affidavit will not work.
It is also not possible to transfer property other than a homestead with a small estate affidavit.
What Does It Cost to File a Small Estate Affidavit?
Every county has a schedule of fees to file a Small Estate Affidavit. The cost varies from county to county, so you should call the clerk’s office of the county where you reside to learn what the fees will be.
For more information, see: When Is It Proper to Use a Small Estate Affidavit?
Learn more about Texas Probate –>
This article was originally published on September 9, 2015, and updated on May 19, 2022.