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.

 

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

  • Michell Bradie

    If your father resided in Texas, and the bank is located in Texas, then a Small Estate Affidavit and Order should be sufficient for the bank to transfer the property according to the Judge’s findings. If you are dealing with a bank located in another state, they may not be familiar with Texas’ Small Estate Affidavit. I would recommend that you talk to someone in their legal department, rather than information that you might be getting from a branch.

    If they insist on Letters of Administration, then you may need to proceed with a Determination of Heirship, and an Independent Administration by Agreement if all the Heirs agree. That would be a shame to have to go through that time and expense, so hopefully the legal department of the bank will confirm that a Small Estate Affidavit will be sufficient.

  • Chris Ercanbrack

    My father passed In October of 2015 and had two Wells Fargo accounts. A financial adviser told us to get an affidavit of heirship which we did and filed, but then they changed their mind and said the small estate affidavit would be needed.

    How difficult is it for by brother and me to do this ourselves? We were told by the county that we absolutely had to have an attorney file it, but the price they quoted us was near 3/4 of what was in the accounts anyhow so it’s really not work it almost. Can we file this ourselves and how difficult is it?

  • Michell Bradie

    I am sorry that you were give misinformation regarding an Affidavit of Heirship. In the future, I would recommend that you not take legal advise from a non-attorney. Yes, a Small Estate Affidavit should be sufficient to access those accounts, assuming that the amount in the accounts and other estate assets passing by intestacy do not exceed $50,000, exclusive of the homestead, and that you have a solvent estate.

    I am not aware of any county that requires someone hire an attorney to file a Small Estate Affidavit for them. You and your brother should be allowed to handle it yourselves if you want to. Some counties even provide forms that you can download from the clerk’s websites for a Small Estate Affidavit.

    It can take a bit of time to complete, and sometimes folks don’t have the time or patience to educate themselves about whether it is appropriate, or about the information that is required to complete it, so I have been hired to handle that that for many clients. However, people handle it pro se (without an attorney) all the time, so many feel comfortable enough to do it themselves. Good luck with it.

  • Donahue Vanderhider

    My brother and I need some assistance to file a small estate affidavit. Our father passed away a couple of months ago. He had no assets aside from small bank account in Lytle Texas. There are no other heirs. We are willing to hire and attorney if its practical to do so. Could you direct us? Respectfully, Donahue V.

  • Michell Bradie

    Since a Small Estate Affidavit and Order is generally considered by the court “on submission”, meaning that they consider it without a hearing before the judge, our office is able to assist clients with that type of probate matter anywhere in Texas. We would have to check with the courts regarding the filing fees in Atascosa County, since they differ from county to county. If you would like to discuss if the case is appropriate for a Small Estate Affidavit, you may call our office at 281-440-6416.

  • If a person dies and one of the children files a small estate of affidavit are they taking responsibility for their un paid bills and can they get sued for not paying if there is no money

  • Robert W.

    We completed a small estate affidavit and it was recently granted here in Dallas (value of father’s estate was a little under $50K at time of submission). We just found out that our father left a life insurance policy (totalling an additional $50K). This is the last estate asset. Do we now have to do a Determination of Heirship and an Independent Administration by Agreement for this one asset?

  • Michell Bradie

    In order to file a Small Estate Affidavit, there must be a solvent estate, meaning that there are more assets than liabilities. If there are no assets to pay the bills, then it would not make sense to want to file any type of probate action. In general, the estate alone is liable or responsible to pay its own debts. Where folks get into trouble is when they take the assets of the estate without paying the debts off first.

  • Michell Bradie

    Since the insurance policy will be made payable to the estate of the deceased when no beneficiary has been named, the only way to open up an estate account to negotiate that check is with Letters of Administration. The only way to get Letters of Administration when there is no Will is to file a Determination of Heirship, and then request administration. If everyone is in agreement (which is always best, if possible), then you can request Independent Administration by Agreement. Once someone is appointed and they receive their Letters of Administration, they can file the SS-4 with the IRS for an Employer Identification Number (EIN) for the estate. Once they have the EIN, they can open up an estate account. Much of this could have been avoided with a properly drafted Will, so please make sure that you protect your family by preparing Wills and Powers of Attorney.

  • Jorge Garcia

    My brother recently passed away, he was disabled and had no property and no real assets other than a small life insurance to pay for his funeral expenses ($7,000). Unfortunately he did not list a beneficiary, he was never married nor did he have any children. I am in the process of completing a Small Estate Affidavit where the 5 surviving siblings are listed. Can one sibling claim 100% of the share and the rest 0% in order for one to take care of the funeral expenses? Or do all siblings need to have equal shares? Not sure if the insurance company will follow 100% to only one but they did suggest for a Small Estate Affidavit be filed.

  • Michell Bradie

    A Small Estate Affidavit must list the heirs-at-law according to the laws of intestacy, and the percentage of the property that they take under the laws of descent and distribution. The heirs are not allowed to “agree” to change it. Intestacy is basically the State’s contract for distribution when someone chooses not to prepare a Will, which would allow them to prepare their own contract.

    So all of the siblings would take equally under intestacy. You said that there were “5 surviving siblings”. If any of the siblings predeceased your brother, and they left children themselves, then what would have been the deceased sibling’s share shall instead pass equally to their children, and possibly grandchildren if a child has also predeceased leaving their own children. Sometimes the distribution can get complicated, especially since ALL heirs-at-law must sign the Small Estate Affidavit before a notary, and sometimes folks don’t have capacity or no one knows where they are. That is why I can’t stress enough that you really need to prepare a Will, and as part of the estate planning, update all of your beneficiary designations.

  • Melissa Lee

    Hi,
    My brother-in-law recently passed away unexpectedly in Austin this last September. He was working for a company in which caused him to move from state to state; however had lived in the same hotel room for the last 5 years. When he died, he left no beneficiary except for his life insurance policy in which my husband was named sole beneficiary. All of my brother-in-law accounts (checking, savings, and 401k) are addressed to a PO box that he used in Austin. He continued to pay taxes out of Ohio and had a current Ohio drivers license using his mother’s old address in Ohio. He did not have any surviving relatives other that his mother and brother who both live in California. Which state will I need to go through in order to obtain his 401k and checking accounts? The cash value of his accounts is about $30,000 with only $1,800 in debt. I am lost were to start in this difficult situation. I would appreciate any help you could provide.

  • Marcia Ann Lopez

    My mother died in April. She has 300.00 left in a bank Acct. no other property as she was in a nursing home and we sold her house to pay the nursing home. she was on Mediciad and we already went through Merp. I was her POA but when she died that ended. How do I get the 300.00. Where does the paperwork go to Texas or Colorado?

  • Michell Bradie

    If he paid taxes in Ohio and had a current driver’s license there, I would assume that Ohio would properly be the place where some type of probate action would be filed. I am not licensed in that state, so do not know if they have something akin to a Small Estate Affidavit. I would suggest that you contact an attorney in the county of the address that he used on his license and that he used for paying taxes. Good luck with it, and please make sure that you have prepared your documents so you don’t leave your family in a similar situation.

  • Michell Bradie

    You did not say anything about how Colorado or Texas come into play. If your mother resided in Colorado, you would need to go through whatever type of probate process is available in that state. I am not licensed in Colorado, so am unable to advise you regarding their laws. If your mother died in Texas, you would ordinarily consider filing a Small Estate Affidavit yourself. However, the filing fees alone are probably as much as the amount in the account, so it might be best doing nothing. After a few years, the funds will probably be transferred to the State Comptroller’s office as unclaimed property. It might be easier trying to claim it after it escheats to the state.

  • Dionne Chappell

    I successfully submitted a small estate affidavit regarding my mother’s estate with Tarrant County. I am now in the process of trying to get her house transferred to my name. I have already recorded the affidavit with the county. What do I do next? Also, she had to pay property taxes to Johnson County as well. Does that mean I need to record the affidavit there too?

  • Michell Bradie

    Unless you already had a homestead interest in your mother’s home prior to her death, you will not be able to transfer it using a Small Estate Affidavit. The law now will only allow it to transfer title to “homestead” property. This will allow one spouse to transfer it to a surviving spouse if it is also their homestead. This was the law in a few counties a few years back, but now is the law in all counties in Texas.

    You would need to use an Affidavit of Heirship to transfer the interest in non-homestead property. That would need to be filed in the county where the property was located. Since taxes run with the land, any interest would transfer subject to those taxes.

  • JoeAnn

    Hello, my mother passed away in 2008 and everything was handled at the bank because she had POD for me and my two siblings. The balance was $3000 that we three spkit. She lived with me for the last four years of her life, so she had no other assets except for some Wal-Mart stocks. I spoke to Wal-Mart and got the forms to transfer the stock to us three siblings. I dont have her ‘important paper’ box, my oldest niece does. She tried to help out by calling them in 2008 and I guess they told her she should have 2 origional sick certificats for 12 shares each totaling $4600. Wal-Mart said since we didnt do a probate we would need to doa Texas Small Estate Affidavit. Actually she dod hand right out a Will on a piece of paper and I believe had it notarized. Im not sure where that paper is either. Do you think I can just do the Texas Small Estate Affidavit as if there was no Will. I will properly do the paperwork making sure my two siblings fill out their forms and mail in all together. That was what my mother always wanted, anything split three ways. Thank you

  • JoeAnn

    Con’d, my niece reported the two origional stock certificates lost and I guess thats wht we need this form to get replacement certificates. He said if we had the two origional stocks this would be much easier. Thanks

  • Sarah

    Hello. My uncle just passed and my mom used the small estate affidavit process. He had 2 bank accounts each had 2 credit cards. When she took all of the documents to the banks they cut her a check for the full amount, not less the CVS debt. Does she now owe the CC?
    withholding the amounts due on

  • Michell Bradie

    If your mother has a hand-written will, what we call a holographic Will in Texas, you could file that for probate. Since it is more than 4 years from the date she died, an administration could not be granted, meaning no Executor or Administrator could be appointed. However, the Will could be filed as a Muniment of Title.

    If your mother did NOT have a Will, then you would file a Small Estate Affidavit, which would need to be signed by all three children.

  • Michell Bradie

    If you had not lost the original stock certificates, you would still need to go through either the probate of the holographic Will you mentioned in your earlier post, or using a Small Estate Affidavit if there was no Will. The extra steps that you have to go through when the stock certificates are lost are filing an affidavit swearing that the certificates were lost so that they can issue replacement certificates. Good luck with it!

  • Michell Bradie

    If the bank gave all the money to her, then she has an obligation to pay the debts due and owing first out of those funds. She is only entitled to what is in the estate AFTER all just and lawful debts have been paid.

  • david

    If a person lived in Angelina county and pass away in that county.Do the sisters have to file the small estate affidavit in that county. Are can it be in wood county tx are they live.

  • Michell Bradie

    Proper venue is in the county of residence of the deceased person. So if the deceased lived in Angelina County, that is where any probate action must be filed.

  • CEP

    My grandmother passed away this past December without ever executing the will that had been prepared for her. She was a widower and her 3 children are all living. Her estate is less than $50k. She has a home, and lived alone. I thought the children could use the SEA, but now am not sure as a note states beginning 9/1/15 the homestead could not be transferred unless the spouse or one of the heirs was living there. How do they get the house sold? –Thanks

  • Michell Bradie

    That is correct. A small estate affidavit will not allow the transfer of your grandmother’s house to her children, since it was not also their homestead property. The least expensive way to handle the transfer of the land is with an Affidavit of Heirship. It is a sworn affidavit that is filed in the real property records, and after 5 years, the facts stated in the affidavit may be taken as true. This is sometimes referred to as a “Poor Man’s Probate”, since no court is involved. It is used quite often, but sometimes makes that house difficult to sell, since title companies may not be willing to issue a title policy based on an Affidavit of Heirship.

    If there are other non-real estate assets that need to be transferred, like a bank account or investments that have not named a beneficiary designation, them you might still want to file a Small Estate Affidavit to deal with those assets. The one benefit of doing that is that the Judge signs an order approving of the heirship information in that affidavit. So, if you have the same heirship information in the Affidavit of Heirship as well, that might make a title company a bit more comfortable knowing that a Judge has looked at and approved it.

    The only other alternative, if a title company will not work with the Affidavit of Heirship, is to do a more expensive Determination of Heirship, and if needed, request an Independent Administration by Agreement.

    I hope that helps!

  • Alex Hughes

    I am a totally disinterested party in settling the affairs of a cousin who recently (September 2016) passed away. I am simply helping the family put her affairs “in order”. My cousin was born and previously lived in Chicago but died in Houston intestate leaving no life insurance or retirement accounts, a few months recently unemployed, debts slightly in excess of $18.5k (mostly credit card), a condo market valued at approx. $150k, a vehicle whose resale value is $25k and a Chicago bank account whose exact value we cannot access or determine without, according to the bank’s officer, a properly filed small estate affidavit. The only thing that the Chicago bank officer is willing to concede is that the value of the account is well below the $50k Texas limit for small estate affidavits. Without knowing this account balance, how can we determine that the value of the bank account will exceed the liabilities and thus proceed with a small estate affidavit? I should note that my cousin heavily believed in “electronic” banking so finding printed statements with balances and accessing accounts without the proper passwords has been nothing short of a nightmare. Your advice and/or comments would greatly help and be appreciated! Thank you.

  • Michell Bradie

    If your cousin was not married at the time of death, then condo would not be considered “homestead” passing to a spouse, so a Small Estate Affidavit will not be effective in transferring that asset. Your cousin’s family could consider filing an Affidavit of Heirship to transfer the real property, but this may cause cloud on title, and often title companies will not want to issue a title policy when there is an Affidavit of Heirship.

    As far as the other assets of the estate, if the value of the vehicle exceeds the debts, it is a solvent estate. However, unless you can prove to the court that the value of the vehicle, amount in the account, and other personal effects don’t exceed $50,000.00, the court will not be able to sign the Order on a Small Estate Affidavit.

    I believe that your cousin’s estate may be better handled with a Determination of Heirship with an Independent Administration by Agreement, if that can be done with the agreement of the heirs-at-law.

  • Peter Briggs

    My mom passed away this past October 2016 in Katy, TX (Harris County). She did leave a will in which I am the only heir (only child) and appointed as independent Executor. She has only one account in which she has a little over 300 dollars. I know that there are shortcuts to bypass going to probate court such as filing a Small Estate Affidavit, but since my mom left a will, I cannot use this option. Now that being said, there is a section in her will about Independent Administration where she states that no other action shall be had in the County Court or any Probate Court in the administration and settlement of her estate other than to prove and record the will and to return an inventory and Appraisement of her estate and list of claims, it her intention that her estate shall be administered free of control of the probate Court. What does this mean? and is there any other lower costing option that I can file in other to get a letter of administration/testamentary or any official documentation from the court that I could take to the bank so that I can close the account? – Thanks

  • Michell Bradie

    The only way to get Letters Testamentary to get access to the bank account is by probating the Will with an administration. The “shortcut” is a Muniment of Title, which will NOT get Letters Testamentary. If that is the only asset in your mother’s estate, then it probably would not be worth going through any probate process. It cost almost $300 for just the filing fee to file the Will for probate, and almost $200 for the filing fee on a Small Estate Affidavit if that was appropriate. If there are other assets in her estate that need to be transferred, then I would recommend that you file the Will for Probate with Issuance of Letters Testamentary. I hope that helps!

  • Melanie Lampert

    Does my husband 401K & Roth IRA beneficiary benefits should be considered in the Small Estate Affidavit?

  • John Radlew

    Hello Ms. Brodie,

    We have eight heirs for the Small Estate Affidavit. Must they all sign at the same location in front of the same notary at the same time or can they sign in their respective locations in front of a notary. They are spread out across several states.

    Many thanks for your help.

  • Jean Kackson

    Can the two disinterested witnesses to an Affidavits of Heirship live in the same house?

  • bob loehr

    What does it mean “personally appeared’ on the small estate affidavit? Does everybody have to show up in court? Thanks. Bob

  • Michell Bradie

    The Small Estate Affidavit would include any property that does not pass by contract, such as by beneficiary designation, right of survivorship, or payable on death. So if your husband has named a beneficiary for his IRA, and that beneficiary survives, it passes to them by contract and does not need to be included in the Small Estate Affidavit. 401Ks are controlled by federal law, and generally pass to a spouse unless there has been a proper waiver filed by that spouse, so again, I would also assume that it would pass to you directly and would not be included in the Small Estate Affidavit or considered in determining if the value should be included in the size of the estate. If you are unsure, you should sit down with an attorney to make sure.

  • Michell Bradie

    Each must sign before a notary public, but they are not required to all sign at the same time and before the same notary.

    So, one heir can sign before a notary in one state on one day, and then send the Small Estate Affidavit to the next heir to sign before a notary public the following week. The law just requires that ultimately each of the heirs sign the Affidavit, and that each of them sign before a notary public. Hope that helps!

  • Michell Bradie

    If by your question, you mean that the two disinterested witnesses live in the same house, but is not the house that is being transferred by the Affidavit of Heirship, that is fine. So, for example, the deceased’s neighbors, which happen to be husband and wife, live in the house next door, but they both live in the same house together, that would be fine.

    However, there could be an issue if the witnesses were both living in the property that is trying to be transferred by the Affidavit of Heirship.

  • Michell Bradie

    When it talks about the person having “personally appeared” before the notary, it means that the person signed in the physical presence of the notary.

    When the court documents state that all parties have “personally appeared”, it means that they have in some form or fashion put themselves before the court by either physically showing up, filing an answer to the matter, or filing some type of response or document that is before the court, either directly, or through their attorney or representative.

    Since the courts usually handle the hearing on Small Estate Affidavits “on submission” (meaning without the parties physically appearing in the court and testifying before the judge in the courtroom, directly or through their attorneys), it would mean that all of the heirs have signed the Small Estate Affidavit before a notary public and therefore have legally made an appearance in the case; and not having everyone show up in court.

  • Maggie Dunegan

    Hi Ms. Bradie,

    I’m wondering if a small estate affidavit would be appropriate in my situation. My brother passed away last June in Los Angeles where he was working. His drivers license and bank accounts are out of Carrollton, Texas, Denton County. My mother and I are his only living family, he never married nor had any children. He owned no real estate, his only assets were bank accounts (all at Bank of America). I’m not sure how many exactly, and Bank of America won’t disclose that info to us. I do know one of them is a small business account with almost $30,000 in it. I have interest in this one as I am a contractor for him, as are two other people, and this is technically money owed to them. His personal accounts likely have very little, if any, in them. His only debts are credit cards and a student loan. I’ve talked with an attorney, and was told it would be almost $7000 to have them handle it, which I don’t have.

  • Karen H McGee

    Ms Bradie:

    My husband passed more than 10 years ago and all the estate was settled; however, I recently found some money in the Texas Unclaimed Property site. One of the items is over $10,000 so I need to file a Small Estate Affidavit. We had 3 kids but because I am on Social Security they want me to have all proceeds. Is it possible to file the document without the kids? Also, do I have to go out to Lubbock or can it be filed by FAX?
    Thank you in advance for any assistance.

  • Alona Lavalais

    I am helping my husband and his siblings file a small estate affidavit. We tried lawyers but can’t get one to return calls. I have two questions. There are five of them and they want to sign their share of the house over to my husband since he has been paying the taxes and doing the upkeep. Can this be done thru the affidavit? And secondly, they all live in different places. So do I mail the affidavit to each them the small affidavit form to get notarized? I do appreciate any help.

  • Michell Bradie

    If your brother’s primary residence (the place that he intended to return home to) was in Denton County, TX, then you may be able to file a probate action in that county. You indicated that one of the accounts is a “small business account”. What can be done, in large part, depends on what type of entity that business is, such as a corporation, LLC or sole proprietorship. Entities, like LLCs and Corporations don’t die. The interest held in that business would be the asset, and not the bank account owned by the business. You also do not know what amount is in the other account or accounts to know if it would fall under the $50,000 cap. I would suspect that you probably would have to go through some type of Determination of Heirship, and if all heirs agree, request an Independent Administration by Agreement. You may talk with other attorneys in that area to see what they estimate to costs to be.

  • Michell Bradie

    You indicated that your husband’s “estate was settled”. That would usually indicate that you went through some type of probate process. If you have, and there were Letters Testamentary issued, you would just need to order more current Letters Testamentary. If a Will was filed and admitted as Muniment of Title, then you would need to provide them a certified copy of the Will and Order Admitting the Will to Probate as Muniment of Title.

    If that is not what you meant by “estate was settled”, and there was no action taken and there was no Will, then you may file a Small Estate Affidavit. Since it must be signed by all the heirs-at-law, your children may not gift their interest to you until after the Judge signs the Order establishing everyone’s interest. Once they own it, they can gift whatever they own to you if they want. However, if parties want to change the distribution of property when someone dies, they would need to prepare a Will. If they do not make a Will, they are stuck with the State’s distribution under the law of intestacy. Parties are not allowed to agree to a different distribution than the way it passes by intestacy when there is no Will.

  • Michell Bradie

    Each heir at law would need to sign a Small Estate Affidavit, and the affidavit can be mailed to each one where they sign in their own state and then return it to the next heir, and so on. However, when you talk about a house going to the siblings, that would imply that it was a parent that died leaving no surviving spouse. It the property was not also your husband’s homestead, then you would not be able to transfer the house by Small Estate Affidavit. That can only be used to transfer an interest in “Homestead”, and that requires that it would also be the homestead of the heir-at-law. You should either file an Affidavit of Heirship, or a Determination of Heirship to transfer the interest in the house to the heirs. Once all the siblings own their interest, they are free to sell or gift their interests as they wish. However, they can’t agree to change the laws of intestacy and the distribution that is established by law when the deceased did not make a Will.

  • Daniel Fernandez

    Both my parets passed in December 2016, father Dec. 2, mother Dec 14. They left no will. They both had separate bank accounts. The balance in my father’s account is $2,192.14 and mother’s account has a balance of $1,115.42. They had a homestead in El Paso county assessed at $55,712 and two empty lots assessed at $3.00, by El Paso CAD. Would I be able to use a small estate affidavit? Or would I need two separate transactions, one for the bank accounts and one for the real estate?

  • Michell Bradie

    The only real property that you can transfer with a Small Estate Affidavit is homestead. When you father died, the house was still your mother’s homestead, so she could have used that to transfer his interest in the house and bank account to her, as the surviving spouse. An Affidavit of Heirship would have to be filed to transfer his interest in the other lots to her, or filing a Determination of Heirship through the courts.

    It is unclear if the courts will allow you to file a Small Estate Affidavit on your mother’s estate’s behalf when no one has been appointed to represent her estate as an administrator. If your mother’s estate was handled as a Determination of Heirship with an Independent Administration by Agreement, then the administrator would clearly have authority to sign a Small Estate Affidavit on your mother’s behalf dealing with your father’s estate. However, some judges might allow the surviving children to sign for the mother’s estate, and some judges will not permit it if they are the heirs-at-law of the mother’s estate as well. You would need to check with the court in your jurisdiction.

    Regarding your mother’s estate, a Small Estate Affidavit could be used to access the funds in your mother’s bank account, but could not be used to transfer any of the real property. Once she died, the house no longer was homestead, since it would not be considered the child’s or children’s homestead. All of those parcels of real property would need to be transferred either by Affidavit of Heirship, or Determination of Heirship.

  • RDLS

    My mom, lived in Texas passed away in Feb. she had a will but she had no assets. She willed furniture and other small household items of no real value to her children and grandchildren. She has $5700 in her bank account, but with no checking account beneficiary. I’m told that in Texas, we can’t us the Small Estate Affidavit b/c she had a will. Also, mom had over $20K in debt, (all CC debt), and therefore if we probated it, the estate would be considered insolvent and all the funds in the account would have go to towards the CC debt first. Is this true- thanks!

  • Michell Bradie

    That is correct, on both counts. A Small Estate Affidavit may only be used WHEN THERE IS NO WILL. Further, in order to be able to use as Small Estate Affidavit, you MUST HAVE A SOLVENT ESTATE, meaning that the assets in the estate exceed the debts of the estate.

    Generally speaking, the debts of the estate must be paid for before anything can pass to the heirs-at-law (when there is no Will) or the beneficiaries (when there is a Will). Otherwise, everyone would give their property to their family and loved ones and never pay any of their bills when they die.

    When you have an insolvent estate, you need to consider long and hard if you even want to file any action in probate. Some claims need to be paid first, before any other claims. So “priority claims” like cost of last illness, funeral expenses, and costs of administration must be paid out before other general unsecured creditors. Sometimes when there have been funeral expenses that have been advanced on behalf of the estate, the estate may be probated in order to recover some, if not all, of those costs. Sometimes after the priority claims are paid, there is nothing left to pay any of the other creditors. The heirs or the beneficiaries are generally not liable for any unpaid debts of the estate. You need to be very careful in handling claims when there is an insolvent estate, and it is not something that you would want to do without the assistance of your attorney. If you mess up as the executor or administrator of the estate, you might wind up becoming personally liable.

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