When Can You Use A Small Estate Affidavit In Texas?

Sometimes smaller estates can be probated through a Small Estate Affidavit.  In order to do so, it must meet certain requirements, as discussed below.

  • There must be no Will.  If the person that died left a Will, then this is not the right procedure to use.
  • The estate must be less than $50,000 in value (not including the value of the homestead or other exempt property.)  So if the value of the estate is more than $50,000, excluding the homestead and other exempt property, then this is not the right procedure to use.
  • The only real property that can be transferred is the Homestead property.  If there are any non-homestead properties, like other homes, lots, time shares, or royalty interests, then this is not the right procedure to use.  [* As of September 1, 2015, the only real property that can be transferred under a Small Estate Affidavit is Homestead that would be passing to a surviving spouse and minor children.  If there is other real property involved, an Affidavit of Heirship may also need to be filed separately.]
  • It requires that 30 days have passed since the date of death, and no petition for the estate has been filed or granted.
  • There must be a solvent estate, meaning that the assets of the estate must be greater than the amount of debt owed. Exempt property may not be included in determining if the estate is solvent.

A Small Estate Affidavit requires two (2) disinterested witnesses to file a sworn affidavit affirming Heirship.  Since there is no Will involved, the heirs-at-law will take their intestate share, just like with a Determination of Heirship.

The Affidavit must list all assets and liabilities, distributees under the laws of intestacy, and their relationship to the deceased.

The court does not have to grant the Small Estate Affidavit, even if all of the requirements are met.  It is within the discretion of the Judge to sign the Order on the Small Estate Affidavit or not.

If the Judge signs the Order on the Small Estate Affidavit, it should be filed in the real property records where the homestead property is located in order to transfer the homestead property to the proper heirs.  There is no deed prepared to transfer the real property.  The Small Estate Affidavit states whom the heirs are, the percentage that they take under the laws of decent and distribution, and that is the information used to show the transfer of interest to those heirs.

A certified copy of the Small Estate Affidavit and Order can be ordered and used to have access to bank accounts or transfer vehicles and other property to the heirs-at-law.

If it is appropriate and all the requirements are met, a Small Estate Affidavit can be a more affordable way to handle the probate of someone’s small estate.

 

272 comments to When Can You Use A Small Estate Affidavit In Texas?

  • Michell Bradie

    If your father passed in 2012 without a Will and no one filed any action in probate by now, your only options are to either file an Affidavit of Heirship in the real property records, or file a Determination of Heirship with the court, but it is too late to ask for any kind of administration. The end result is that the heirs will be determined, which from your message sounds like the property would be owned equally by the 4 of you kids. It didn’t matter if you were caring for him, or if some kids have an interest or some don’t. If each have an equal undivided interest, you can either buy each other out so that one person owns it all, or the two that want to keep it own it all, or you can all agree to sell it. If you can’t get to that point, then someone can file suit to partition the property and force the sale. The end result is that the property will be sold, but after paying legal fees, everyone will get less. I would suggest that you try to work it out somehow. See what they would be willing to sell it for, and then see if you can somehow buy them out. If you can’t afford to do that, then perhaps you can’t afford to keep the place, even though it has sentimental value to you. It is really rough when things like that tear a family apart.

  • Michell Bradie

    You could see if the bank would accept the Will probated as a Muniment of Title to release the funds to the sole beneficiary under the Will. That would avoid the administration.

    Also, a Small Estate Affidavit should only be filed when there is no Will. However, in some counties, I have seen where the Judge will accept the filing with a copy of a Will attached in similar circumstances where it is a small estate, and the distribution is the same as it would be with the Will. Personally, I don’t see how the Judge can legally get over the “No Will” requirement, but I have seen it happen. So, you could also check with the courts in your jurisdiction. However, I personally would feel more comfortable admitting the Will to probate as Muniment of Title if the bank would accept the Muniment Order. I would probably have your attorney reach out to the bank officers before hand, and maybe add some specific language in the Muniment Order for the turnover of the funds in that particular bank just to give them some comfort.

    (The only issue with a Muniment of Title and Banks is that most Banks are based out of places like New York. Texas is the only state that has a Muniment of Title, so they just don’t understand them or know what to do with them. It can take a while to educate the Banks, and sometimes it is impossible to do so.)

  • Billy Tipton

    Hello,
    My dad passed away 4 years ago without a will leaving my surviving mom the homestead property. She passed away June of 2017 without a will also. My question is can I fill out a small estate affidavit to have the deed transferred over to myself, my brother and sister? Do I need a lawyer to create this document if we can use it?

    We live in Texas

    Thanks
    Billy Tipton

  • Michell Bradie

    Your mother’s estate might be about to use the Small Estate Affidavit to transfer your father’s interest in the homestead to her, so that 100% will be in your mother’s estate (and a Small Estate Affidavit can be filed even if it is more that 4 years from the date of death). That is because your mother had a homestead right in the property when your father died. However, you children do not have a homestead right in the property. That is why a Small Estate Affidavit will not work to transfer the interest from your mother’s estate to you children. (By the way, when there is a Small Estate Affidavit, that is what is filed in the real property records, and there never is a Deed prepared and recorded; it acts like the deed to show the transfer of interest.)

    You will still need to do two probates; your father’s estate, and then your mother’s estate. Assuming that it otherwise qualified, you can probably handle your father’s probate with a Small Estate Affidavit and Order. However, that will not work for your mother’s estate. Depending upon what assets and liabilities that there may have been in her estate, you will either need to do a Determination of Heirship, with or without an Administration (which you will need an attorney for), or if there were no debts owed by the estate, you might be able to file an Affidavit of Heirship, which you will likely need to hire an attorney to assist you with drafting, and should talk with the attorney about the benefits and drawbacks of using an Affidavit of Heirship. Sometimes make it hard to sell the property since there has been no court involvement determining who the heirs are, so title companies may not want to issue a title policy if you try to sell it unless the Affidavit of Heirship has been on file with the clerk’s office for 5 years.

  • Annette Sanchez

    I am filing a sm estate affidavit for bank account and maybe an income tax for 2017. What if a family member wont participate and sign the affidavit? Can I go forward with claim.

  • Susan Doyal

    My son passed away in March. He did not have a Will. He has a 6 year old daughter. Since she is a minor can we file a Small Estate Affidavit? My son had no property and his vehicle was repossessed. The only assets he has is his bank account. He did not list a beneficiary on his bank account. I am trying to make sure his daughter gets his assets but don’t want to spend more money Probating the will if there is a less expensive way.

  • Michell Bradie

    No. If your family will not cooperate ans sign a Small Estate Affidavit and they are heirs, then you may not proceed that way. It requires the cooperation of all the heirs of the estate. That also is not likely to work for your, as a check issued to the estate of the deceased will need to be deposited into an estate account. That cannot be done with a Small Estate Affidavit. To open an estate account, the bank will require Letters Testamentary or Letters of Administration to get an Employer Identification Number (EIN) from the IRS to open up the estate account. You do not get any Letters with a Small Estate Affidavit.

  • Michell Bradie

    If the estate otherwise qualifies, then you probably can use a Small Estate Affidavit if she still has her mother, which is her natural guardian. At least in most larger counties, they will allow the other parent, who is the natural guardian of the child, to sign the Small Estate Affidavit on behalf of the child. Since the child is a minor, the payment would need to be issued in trust for the minor child, so that should be made clear in the Order as well. The bank may also like some special language included as well. This is one time when you may want to use an attorney to prepare the Small Estate Affidavit if they will allow it in your particular county.

  • Luke

    My mother passed away recently. She signed and dated the typed will without any witness or was it notarized. I believe such will is not valid. My siblings (brother and sister) have all seen the typed non valid will and are 100% in agreement of all her estate transfering to me, as I have lived with her and paid all the upkeep for the last 20-years. Her estate has no debt, as I paid for the funeral cost, bills and other liabilities. My mother estate has $56,000 in cash/savings and $215,000 (tax value) house that’s all paid off. The intestate rule state 1/3 (3 children and father passed away a while back) of the asset be split. Is there an affidavit that my siblings can sign to not accept their share of the home (real property)? Without going through lengthy process. I have told my siblings that I would give all other asset to them. Also, I believe my case would involve Determination of Heirship. And, would that process be the right one where the banks would get all their forms to sign off on transfering the asset?

    Thank you so much.

  • Michell Bradie

    You are correct that a typed document that is not properly witnessed is NOT a Will and has no force and affect.

    When someone dies without a Will, it passes by intestacy, and the state determines how it will pass according to their laws. The heirs cannot “agree” to change that to pass it differently. So, if your siblings are entitled to inherit something from your mother, once it is theirs, they can gift it to you if they wish. However, they cannot “agree” to change how the distribution will go so that it passes the way you know your mother would have wanted. The only way that could have been done would have been for her to prepare a valid Will. (Please note, too, that if your brother and sister gift you things, they also need to be concerned about gift tax consequences.)

    The house could not be passed through a Small Estate Affidavit, since it is not the homestead for your and your siblings. There is a possibility that you may be able to transfer the rest of her estate using a Small Estate Affidavit, and using an Affidavit of Heirship for the house, but that could cause a possible cloud on title if a title company wants to make sure that there is some type of court order determining who all the heirs are. So if that is the case, a Determination of Heirship is another way to clearly establish who all the heirs are and the percentage that they are entitled to under the law. The bank, however, will most likely also require Letters of Administration to distribute the funds, so you could also file for an Independent Administration by Agreement. This would also allow you to seek reimbursement for the funeral expenses and any costs of last illness and debts of the estate, including the costs of administration before any distributions are made. That way, any amounts that may be gifted back could be reduced legitimately, and reduce possible gift tax as well. You should discuss this with an attorney in your area.

  • Luke

    Ms. Bradie, thank you so much for your feed back. Yes, I am planning on hiring an attorney to handle my mother’s estate, however, I just wanted to be prepared and to let my siblings know what direction will be best for all of us. And, we would like to avoid any gift tax beyond $15,000 for 2018.

    Few more questions:
    A. Can my siblings file Disclaim of Inheritance for the real property only with the probate court?
    B. Would the Disclaim of Inheritance allow myself to inherit the real property?
    C. Would this process be lengthy and more expensive for an attorney to handle?

    Thank you so much.

  • Michell Bradie

    Luke, it is possible to disclaim only some assets and not others. However, if they disclaim those assets, they are treated as if they predeceased your mother. That may result in the property passing to their children, rather than you. I would strongly suggest that you sit down with your attorney to discuss the details of your specific situation to figure out what would be the best approach.

  • Jim Sobule

    My exwife has asked me to help advise her on handling the estate of her current husband. I am an attorney but not licensed in Texas or familiar with Texas probate law. 2 questions on Small estate affidavit-
    1 first am i correct that the $ amount has been raised to $75,000 since your article was printed?
    2 If property is held in joint tennancy or POD, so it passes by operation of law (such as a car or bank account) would this not be included in valuing of the estate?

    Texas has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property — for example, a bank where the deceased person had an account — gets the affidavit and a copy of the death certificate, it releases the asset.

    The out-of-court affidavit procedure is available in Texas if there is no will, and the value of the entire estate, not including homestead and exempt property, is $75,000 or less. It can be used to transfer homestead, but no other real estate. There is a 30-day waiting period.

    The affidavit must include the following information:

    a statement that all of the conditions above have been met
    a list of all known estate assets and debts
    a list of assets the inheritor claims are exempt, and
    the names and addresses of each inheritor the relationship between the inheritors and the deceased person to establish their legal right to inherit the property.
    Two witnesses and each inheritor must sign the affidavit. The witnesses must have no legal right to inherit the property. A probate judge must approve the affidavit. Tex. Est. Code § 205.

    Simplified Probate Procedures
    Texas has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate.

    You can use the simplified small estate process in Texas if the value of the property doesn’t exceed the homestead, exempt property, and what’s needed to pay the family allowance and certain creditors. Tex. Est. Code § 354.001.

    The executor must still file an inventory, an appraisal of the value of the property, and a list of creditor claims against the estate. The executor may be required to pay a bond, which is a type of insurance that protects the estate from wrongful conduct by the executor. The court will order the payment of certain claims, and the executor should pay these claims in the order of provided by the court. The executor prepares an accounting and submits it for the court’s approval. If there is any property left after paying the claims, the court can order the executor to distribute the remaining property as it instructs.

    “Independent administration” is available — regardless of the value of the estate — if it’s requested in the will or if all inheritors agree to it. The executor submits the deceased person’s will and files an inventory, an appraisal of the value of the property, and a list of creditor claims against the estate with the probate court. Bond may be waived. There is no need for any further proceedings in front of the probate court. Tex. Est. Code § 401.

  • tGUY

    How do you sell property that is listed in Small Estate Affidavit?

  • cathy boyle

    My mother passed away the end of September 2019. Mom did such a great job with everything except her life insurance policy. The life insurance did not have a beneficiary listed and the check came to us as to the estate of _____. The banks are telling us we have to get a small estate affidavit. everything I have read say that it is used only if there is no will. Mom had a will. Like I said she did such a great job with everything else but this. What do we do at this point.

  • Michell Bradie

    You will need to probate your mother’s Will. You are correct. A Small Estate Affidavit is supposed to be used when there is NO Will. In your situation, you also have a check that is made payable to your mother’s Estate. In order to deposit that check, you need to have an “Estate Account”, and the only way to open up an Estate Account is by having some type of representative appointed to act on behalf of your mother’s estate. Since your mother had a Will, someone would be appointed Executor to get Letters Testamentary (just a fancy word for a one-page court order showing the Executor’s authority to act on behalf of the estate). If there was no Will, then someone would need to be appointed Administrator, and they would need to get Letters of Administration. With Letters Testamentary, you can get an EIN (Employer Identification Number) from the IRS for the estate (since you can’t use your mother’s Social Security Number any more after she passed away) to open the account. But with that EIN and the Letter Testamentary, you can open up the Estate Account at the bank and deposit the check. It is pretty easy, really. If she has other property, like a house, or cars, then the Executor would transfer those as well, according to the terms of her Will. I hope that helps.

  • Michell Bradie

    If you are referring to real property, when the Small Estate Affidavit (SEA) and Order are recorded in the real property records in the county where the Decedent resided at the time of death, that will transfer any interest in the homestead according to the SEA. So, if the interest passed from a husband to a wife, according to the heirship declaration that is in the SEA that the Judge signed the Order on, it will show that 100% of the husband’s community property interest passed to wife, since the intestate share is shown in the SEA. The recording of the SEA basically acts like a deed transferring the interest in the property to the person who is entitled to it under the laws of intestacy. When, in our example, wife then owns it, the wife can then sell the property, just as if there was a deed listing the property in her name alone. A title company would pull that information when they did a title search if she were ever going to list the house for sale, and she would show up as the sole owner.

    If it is for the transfer of other titled personal property, like title to a car, they heirs that were shown to have an interest in it would take the certified copies of the SEA and Order over to the Tax Office with the car title, and ask that title be changed over into their name or names. Once it is in their name or names, they can do with it as they wish, just like any other owner of a vehicle could. Did that answer your question?

  • Michell Bradie

    The cap for a Small Estate Affidavit is now $75,000. It does exclude funds that are passing outside of probate, such as by beneficiary designation, right of survivorship, payable on death, etc., when it is passing by a contractually agreement with an entity, like a financial institution or insurance company. The $75,000 is exclusive of homestead (which could be over $2 million, and the estate could still qualify). It will not pass any other real property except for real property that is also passing as homestead to the party that would inherit as an heir, and this type of Affidavit is presented to a Judge who considerers the matter on submission, and if approved, signs an Order on the Small Estate Affidavit. So, the Distributees (or what you are calling the inheritors) don’t really “skip probate altogether” as you stated. They do file their paperwork by affidavit, under oath, sworn to by all heirs as well as two disinterested witnesses, and then it is submitted for consideration by the Judge generally without a hearing. However, the Judge could request a hearing if the Judge felt that it was appropriate. It is an action that is granted in equity, rather than in law, so even though an estate may qualify for a Small Estate Administration, it is not “entitled” to one unless the court deems it so.

    You have included some other very abbreviated information regarding probate procedures in Texas, some when there is a Will, and others when there is none. If you reach out to my office, we could probably talk with you briefly and let you know very quickly which is the best route for her to take for her husband’s estate. It can safe you a lot of time and research.

  • Jeffery Martuzzo

    My Mother passed without a will, the last few months she came to live with us. in that time we discovered that she was not doing the best job in keeping up with her finances, and it was a struggle to get her to remember all the passwords to this that and the other. there were also a few hospital trips in there as well. with all that being said, she passed and did left about ~25k in total in accounts.

    My sibling and I are wary to use the small estate affidavit as we know that there could be liabilities out there that we are unaware of as my mother only lived with us for 2 and 1/2 months before passing, i do not believe that she ever got her address changed.

    everything that i have read about notice to creditors has been in regards to probate. would a notice to creditors act as a barrier if claims are not presented in due time as it does in probate?

    Also it is somewhat of a possibility that the estate is not solvent pending medical bills. this could be especially true if we have to go through an independent administration process.

  • RTEP

    My widowed mother passed in August 2019 with no will and minimal debts. I understand that all assets need to be listed on a SEA, with some exceptions such as POD or right of survivorship accounts (please confirm that these accounts are not listed). That being said, would the children (heirs) need to list a loan made to a grandchild (non-heir) if there was no promissory note, no payment since 2012 and little likelihood of being able to collect? If it needs to be listed with the appropriate distribution percentage, is it up to the heirs to attempt to collect or not to attempt to collect on the loan?

    In lieu of a SEA, could a Family Settlement Agreement be used when there is no will? Can a FSA be presented to a bank for payout of non right of survivorship accounts?

    Thank you in advance for your response! Your blog has been very informative.

  • Michell Bradie

    You should wait to see what the medical bills are that come in from your mother’s estate. They will most likely be sent to her old address, but you can request a forwarding address change be filed. You are not personally responsible to pay the debts of your mother’s estate; only her estate is responsible for payment of her own debts. If she has an insolvent estate, then you would NOT be able to file a Small Estate Affidavit, since one of the requirements is that it be a solvent estate.

    Sometimes doing nothing is the best thing. Creditors also have the right to file an action in probate if they wish to try to collect, though they rarely do. Creditors prefer to file claims in an estate that has already been opened. If the creditors should open a probate estate, they will always be paid first before any heirs will inherit property. When the decedent only has a small estate and creditors may not know of any assets, it is pretty unlikely that any creditors will invest the money themselves to open a probate case.

    If all that your mother had was bank accounts, and if no creditor files any probate action, eventually those accounts will go dormant and will escheat to the State. When that happens, you then have an opportunity to try to collect the funds through Unclaimed Property with the State Comptroller’s Office. This will take many years, so you just would need to check periodically. The Comptroller’s Office would then let you know what forms you would need to provide to collect unclaimed property as the heirs of the deceased’s estate when no probate action has ever been filed. It is free to check for unclaimed property under your mother’s name, and you should check with the Comptroller’s Office of every state that your mother lived in.

  • Michell Bradie

    There is insufficient information to know if a Small Estate Affidavit would be appropriate in your mother’s situation based on the information that you provided, since it must meet specific requirements in order to qualify, including value of estate, and it must be a solvent estate. That means that there must be sufficient non-exempt asset available to pay even those minimal debts; not just assets in general v. debts.

    As far as the loan that has allegedly been in default since 2012, it is now 8 years in default and well past the statute of limitations, so would not be listed as a claim owed to the estate. Further, with a Small Estate Affidavit, there is no one that is charged with authority to act on behalf of the estate, so no one would have authority to pursue collection on behalf of the estate. All the court does is determine the interest that the heirs have, and then the heirs would be able to purse collection of their own interests, in their own names. There is no Executor or Administrator with a Small Estate Affidavit.

    Finally, a Family Settlement Agreement is not going to be binding on a financial institution in lieu of a court’s order, whether it be an Order on a Small Estate Affidavit, or an Order appointing someone as an Administrator after a Determination of Heirship.

    You would not list non-probate assets in a Small Estate Affidavit, but I get the impression that you might have some more complicated issues involved with your mother’s estate. Since Small Estate Affidavits need to be pretty precise, I would recommend that you discuss your mother’s estate with an attorney that handles estate and probate work in your area to confirm the best type of probate action for your particular situation.

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