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.

 

205 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.

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