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.

 

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

  • Michele Zapata

    Hello, I’m hoping you can guide me.. my mother passed in 2011 my father in 2014.. my brother at the end of 2016. My dad had homestead property in his name. No other assets. Do I need to file an affidavit of heirship for all 3 family members (none left a will and no previous affidavit was filed ). I am the last member of my family. Or would I just file one on my dad as he was the only one on the property?

    Also would I record the affidavit with the county clerk and then send it in with the small estate distribution to the probate courts?

  • Melinda McIntire

    My father passed away 4/27/2013. My sister never probated his will. She said the only will she could find was over 20 years old and my brother (who died in 1988) and I were excluded from his will. My step mother died the previous year and her will was not probated either. My father’s had a lot of debt according to my sister, but he did have quite a collection of sterling silver, crystal, jewelry such as two Rolex watches, art, fine furnishings, etc. My sister let his home go into foreclosure, which I knew nothing about. She says she did not have to probate the will because he did not have any assets. She & my other sister divided all the personal items up between themselves. Do I have any recourse since I think my sister, as executor, did not make any kind of inventory of what what in his home?

  • Michell Bradie

    A few years back in some jurisdictions a Small Estate Affidavit was allowed to transfer what was the deceased’s homestead property to their heirs. However, under the laws today, it may only be transferred to a person who also has a homestead interest in the property. A Small Estate Affidavit has never been able to transfer non-homestead real property. So, for example, husband and wife live in the house as their primary residence. Husband dies without a Will, and in all other respects could have his estate qualify for a Small Estate Affidavit. His interest in the homestead property can be transferred to his wife, since she already owns part of the house and it is also her homestead. Now, let’s look at the same situation where both husband and wife die simultaneously in a car accident and they have two surviving adult children. The house may NOT be transferred to them by a Small Estate Affidavit, since the house is NOT considered their (the children’s) homestead.

    The Judge is not required to give an explanation as to why they denied the Small Estate Affidavit, since it is permissive in nature. However, if there was real property involved, I would presume that would be why it was denied, since you clearly do not have a homestead right in that property.

    The proper procedures for transferring real property in Texas when there is no Will and the heirs-at-law do not have a homestead right in that property are (1) a Determination of Heirship (with or without an Administration), and (2) an Affidavit of Heirship.

    With a Determination of Heirship, the Judge makes a legal determination of who the heirs are, and what interest they are entitled to. That will give legal title to the property to the heirs at law, and future purchasers of the property are protected in case someone later shows up and claims that they are an heir. It is more costly, and will require that the court appoint an Attorney Ad Litem to represent unknown and missing heirs, but it will legally accomplish what you are trying to do.

    With an Affidavit of Heirship, there is no court involvement; just an heir and two disinterested witnesses swearing under oath about who the heirs are. After the affidavit has been on file in the real property records for at least 5 years, the facts stated in there may be considered true (what we call “prima facie evidence of heirship”). That doesn’t mean that the information may not be disprove, but the burden of proof shifts to the person claiming to be the omitted heir at law. Because there is no guaranteed protection if another person comes forward to claim that they are an heir, and there is no court involvement, title companies may not be willing to issue a title policy, and it may effect the future marketability of the real property.

  • Michell Bradie

    This response assumes that all of your family resided in Texas, that the homestead was community property and all of your mother’s children were children of this marriage, or that the homestead was purchased after your mother’s death and was the separate property of your father, that you and your brother are the only children of your father, and your brother passed leaving no lineal descendants. (Please refer to how property passes according to intestacy on this site. If any of these assumptions are not correct, the outcome could be very different, and you should speak with your own attorney about your specific situation.)

    If the homestead was purchased during the marriage of your mother and father, it would be presumed to be community property. If you used a Small Estate Affidavit in your mother’s estate, it will show clear legal title of the homestead property passing to your father. By having court involvement, you know that there will be clear title to the property vesting in your father’s estate (again, assuming the facts stated above). It it was transferred by Affidavit of Heirship, then you might run into issues selling the property, as discussed below. If the homestead was purchased by your father after your mother’s death, then this step would not be necessary.

    When your father died without a Will, your have two options to handle the transfer according to the laws of intestacy in Texas. You may either file a Determination of Heirship (with or without an Administration) through the court, or you may use an Affidavit of Heirship. (A Small Estate Affidavit would NOT work, since your father’s homestead was not also his children’s homestead.) An Affidavit of Heirship will be much less expensive, but may prevent a title company from issuing a title policy, since there is no court legally determining who the heirs are. Assuming that you and your brother are the only ones that take the property according to the laws of intestacy in Texas, once your father’s estate is handled, you will own half and your brother’s estate will own half of the property. The next step is to have your brother’s estate handled, either through a Determination of Heirship (with or without an Administration) filed in the court, or you may use an Affidavit of Heirship. Again, if under the laws of intestacy, your are the only person that would be his heir at law, then ultimately you would wind up owning the property. I would suggest that you discuss your options with your own attorney to see what procedures would work best for you in your particular situation.

  • Michell Bradie

    In Texas, when there are debts owed by an estate, those debts are supposed to be paid off before any remaining property it transferred according to the Will (if there is a valid Will) or by intestacy (when there is no valid Will). The creditors could have also filed an action in probate in order to try to collect on their debts, which they apparently did not do. Since no probate action was ever filed, there was no one appointed by the court to be the Executor or Administrator, and therefore there was no one that had a duty to do anything with the property, much less provide some type of Inventory.

    If any administration is required on an estate, it must be filed within 4 years of the date of the person’s death. In other words, even if the Will could be filed for probate now, or if a Determination of Heirship was filed now, the court could still not appoint an Executor or an Administrator since it is more than 4 years since your father passed. Now, that doesn’t mean that the court may not be able to determine who is entitled to what. There are some hurdles that you or your sister would run into trying to probate a Will outside the 4 year period of time, and this forum is not the place to get into those detailed problems. You should speak with your own attorney about it. However, if there was no valid Will, or your sister was not able to admit the Will to probate, and the property in your father’s estate were to pass by intestacy through a Determination of Heirship, you may be able to establish your ownership interest in a portion of that property. Understand, however, that the burden to show what property existed at the time of your father’s death, and where it went to, is on you. That is likely to be difficult to do, and pretty expensive. However, if you are able to prove your interest, and prove that the property is now in your sister/sisters’ possession, you may be able to proceed in a separate legal action to have the property turned over to you. Because of the complexities involved, you really should sit down and discuss this with your own attorney to be able to make an informed decision as to whether it is even worth pursuing.

  • Babs

    My parent passed away, his spouse is deceased. He did not leave a will. There are two of us that are his biological children through marriage. He owns a home, with @45,000 owed in mortgage, which won’t leave much equity. He owns a car, that is totally paid for and has no liens against it. We just want to sell the car and let the home go to the bank. He also has a couple of small loans (7,000 & 3,000) that are unsecured. Our concern is that if we let the house go to the bank, that they might only sell the home for what they are owed, which might make the creditors of the unsecured loan come after the car. We were wondering if the Small Estate Affidavit can be used. We have not started probate as this is so terribly confusing.
    We are hoping to be able to sell the car as we have spent a large amount of money in regards to this situation and want to get our money back.

  • Jules J

    Hello. I am desperately in need of some advice. My step father passed away in 2012 (about 4.5 years ago). We were never able to find a will. He was married to my mother, and he has 3 grown children that are not also her children. My mom has been living in their house and paying the mortgage, taxes, and insurance on her own since his passing. She wanted to be able to clear the title to the house since it still has her and my step dad’s name on it. The title company advised us to contact his children and ask them to sign their portion over to avoid and responsibility to the debt of the house (there is not much equity in it). It didn’t go over very well with one of the children and they are “using their resources” to try and give us a hard time. If it comes to a point that she is not able to make the mortgage payment, are the children responsible also since they have not signed the title over? Also, are they responsible for any of the 5 years worth of payments that my mom has made towards the house even though by law she only owns 50%? Thank you for reading, this is such a difficult matter.

  • Michell Bradie

    A Small Estate Affidavit may not be used to transfer real property unless it was also the heir-at-law’s homestead as well, like when a husband and wife own a house together and one of them dies, since the other spouse already have a homestead interest in the property to begin with. This was a change that took place several years back, and in some counties, has always been require. As children of the deceased, it sounds unlikely that you also hold a homestead right in the same property.

    From what you have written, under Texas law, assuming that you have a solvent estate, it sounds like the best course of action would be to file a Determination of Heirship, and an Application for Independent Administration by Agreement if all of the heirs-at-law can agree on an administrator. That way, you can liquidate the assets of the estate, hopefully selling at fair market value, rather than having assets sold at a foreclosure sale, which will always be less than fair market value. Remember, you are also a creditor if you have advanced expenses, like funeral expenses. So you will want to sell the property for as much as you can in order to pay everyone off, and hopefully have something left over to divide between the heirs.

    If there is more debt owed than assets, that is an insolvent estate. Sometimes doing nothing is the best thing. Unless you have personally guaranteed loans for your parent, you are never personally responsible to pay their debts. However, you are not allowed to take any assets until all of the debts have been paid in full. Creditors always need to be paid before anyone can inherit what may be left, if anything.

  • Michell Bradie

    Since step-dad died without a Will, under Texas law, his property will pass according to the laws of intestacy. Please take a look at the following link to see how it would pass: http://bradie-law.com/practice-areas/wills/intestate-distribution/. It will depend on whether the house was your step-father’s separate property, or if the house was acquired during marriage and was community property held with your mother.

    If the house was your step-father’s separate property that he owned before marriage to your mother, then she would only own a 1/3 interest in the real property for life, and the other 2/3 would pass to his children subject to your mother’s life estate.

    If the house was your step-father’s community property house held with your mother (acquired during marriage), then half of the house is your mother’s, and the other half of the house belongs to his children. You mother, however, has a homestead right in the house so long as she is living there as her primary residence, so his children may not force her out or force a sale of the house.

    There is no way for your mother to get “clear title” to 100% of the house unless his children either agree to gift their share to her (after their ownership interest has properly been established through a Small Estate Affidavit if they can all agree, or through a Determination of Heirship), or they agree to sell her their interest. The law can’t force his kids to be nice.

    Your mother may have a claim to seek reimbursement against them for some of the expenses that she has paid on their behalf, but that type of litigation can get very expensive, and wont’ give her the right to force them to turn over their interest to her. If that is how she wishes to proceed, she should discuss the particulars with her own attorney to weigh the benefits and drawbacks of such action. That is a bit more complex than we can go into in a blog setting like this. I hope that helps.

  • Tramaine P

    My siblings and I have been denied small estate affidavit on my fathers bank account, the first time was because I put 100% on each of our names, this second time I corrected it and put 25% for each of us as the judge stated but then he had a truck so we filled out two separate forms one for his bank stating each of us to receive 25% and one with the truck stating that my brother receives 100% but just on the truck. We ere denied again. Is it because we all have to receive 25% of everything including the turck?

  • Naomi

    I live in Texas, my brother died intestate, my sister and I are the ONLY surviving siblings. My sister and brother were co-owners of the house, but she had given up her interest in the property, via a special warranty deed, 7 months prior to his death; because there was a suit against her by Galveston, Co., the Independent school Dist. and College of The Mainland for non-payment of Taxes for a period of 5 yrs. I currently live in my brother’s home. I also have two notarized statements from two of my brothers long time friends who attest that my brother did not want my sister have any part of his property, because she had betrayed his trust and taken a huge amount of his money without his consent. I also found two letter written & signed by my brother where he is pleading with her to return his money. I am not totally sure what should be included in the small estate affidavit. with this evidence is it possible that the Judge grants me 100% of the estate and exclude my sister from receiving any part of it. My sister did NOT help in the smallest measure with the funeral expenses, with the clean-up of the property. but she and her children, have ransacked his home taken the little there was of value, and also taken his veh. yet none of them a had even spoken to my brother in almost 4 years.

  • Naomi

    I forgot to mention, that other than his home and a 15 yr old veh. my brother did not have any thing of real value. the money he had in his checking account which exceeded $75,000.00 was taken by sister 5 yrs. prior to his death.

  • brother in law passed –no will–single, no kids– 4 surviving brothers and sisters—he has house, cars and the usual property and bank accounts…assets less than 50, 000…what would be the best way to settle his estate–Small estate affidavit, determination of heirship, affidavit of heirship or some other method

  • Michell Bradie

    The share that you are to receive under intestacy applies to all of the property in the estate, assuming that it is all within the same class, meaning separate or community property, and personal or real property. You are not able to divide it up between yourselves just because you agree. So, if you were each entitled to 25% of the estate, then that would apply to a bank account, a truck, a sofa, etc., and you need to be consistent in the affidavit.

  • Michell Bradie

    Since the house is not your homestead, you would not be able to transfer it using a Small Estate Affidavit.

    Under intestacy, it doesn’t matter if people are good or bad, or what the deceased person wants or doesn’t want. If he really didn’t want her to inherit part of his estate, he could have prepared a Will leaving everything to a specific beneficiary and making sure that she took nothing. However, it sounds like your sister is an heir of your deceased brother’s estate. A Judge has NO discretion to change who takes what under the laws of intestacy. Again, they only way to change what the state sets out for distribution is to prepare a Will to give your property the way that you want it to go. If it is any consolation, cost of last illness, funeral expenses, and cost of administration get paid out first, the the other debt of the estate a paid off before anything gets distributed to the heirs. So if you have advanced funeral expenses on his behalf, you may be able to reimburse yourself first before your sister can collect anything. Good luck with it, and make sure that you prepare a Will so that you don’t leave your family in the same position.

  • Michell Bradie

    As of September 1, 2017, you may now use a Small Estate Affidavit on Estates up to $75,000 in value in Texas, exclusive of homestead. However, since the house is not a surviving brother or sister’s homestead, you will not be able to transfer that using the Small Estate Affidavit. You may be able to use the Small Estate Affidavit for all the other assets, and an Affidavit of Heirship for the house. However, if there are something like stocks that require that there be some type of Letters of Administration, then you will have no choice but to move forward with a Determination of Heirship, and hopefully if everyone plays nice together, an Independent Administration by Agreement of Intestate Estate with Letters of Administration. You didn’t mention any stock, so hopefully you can get by with just the Affidavit of Heirship and the Small Estate Affidavit combination to take care of all the assets. Hope that helps, and I am sorry for your loss.

  • Jennifer

    Hello,
    My mother recently passed away and I have contacted the bank to close her account. I am the beneficiary upon death listed on the account. She only possessed a travel trailer with a value of between 10 thousand and 20 thousand dollars and a car with a value of about 5 thousand. I read that if I am named the beneficiary to her accounts that should not be included in the estate estimate. Is that correct? I would also like to know what I need to do to get the trailer and car put into my brother’s name which is what my mother requested he be given upon her death. She did not have a will but she told both me and my brother what she wanted to happen after her death. I would be put in charge of handling her affairs after her death and he would be given the trailer and car. Any advice you can give me would be appreciated.

  • Michell Bradie

    If there is property that passes by beneficiary designation, you are correct that those amounts should not be included in determining the value of what is passing by intestacy.

    If the only other property that needs to be transferred are vehicles and a trailer, that can usually be done with a form that you can get through an Affidavit of Heirship for Motor Vehicles. You should be able to download that form from the internet. (It is very different than the Affidavit of Heirship that is used for transferring real property, so please don’t confuse them!) Unfortunately, it doesn’t matter what your mother “wanted to happen after her death”, since she didn’t prepare a Will. When you elect not to prepare a Will, you go by the state’s default distribution, which is the law of intestacy for that particular state. So, the vehicles will pass by intestacy to all of your mother’s heirs. Once all her heirs own their interest in the vehicles and trailer, they are welcome to transfer their interest to whomever they wish. They can sell or gift their interest to your brother, if they would like. However, you may not change the distribution under intestacy because your mother wanted something different. The solution to have a different distribution is to prepare a Will. Hope that helps!

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