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.

 

262 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.

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