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 $75,000 in value (not including the value of the homestead or other exempt property.)  So if the value of the estate is more than $75,000, excluding the homestead and other exempt property, then this is not the right procedure to use. (It used to be $50,000, but has increased to $75,000.)
  • 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.

 

292 Comments

  1. 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?

  2. 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?

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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: https://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.

  10. 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?

  11. 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.

  12. 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.

  13. darren

    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

  14. 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.

  15. 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.

  16. 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.

  17. 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.

  18. 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!

  19. Simon

    A relative passed away with a will naming me the executor. There is $3,000 in one bank account and no other assets or debts, no spouse and one adult child who is the sole beneficiary under the will. Is there any way to avoid the expense of a probate considering the small size of the estate?

  20. George

    My dad passed away a couple of months ago and did not have a will. He owns a house with a mortgage. I am the sole heirship and filed for heirship which I was granted. The mortgage company will not transfer the title to me. They want a administrator or executive of estate letter. I do wish to go thru probate. How do I file for administrator in the court and where will I be able to find the forms.

  21. Staci

    I recently lost my dear friend who was 93 yrs old in 11-2017 I was his live in care giver and we were best of friends. He had 1 son that he had no contact with for many many years and had no desire to. I had asked if I needed to contact this son and notify him of his death when it occurred…he stated that he did not want him notified. Now with that being said he tried to get a living trust and a transfer on death deed stating that I was to inherit his home that I paid $10.00 to him for as this was his request of payment for his home. There is a bill of sale between us on this. The living trust and deed were never notorized as he was home bound and could not get a notary to come to our home. There however is a holographic will stating that I am to have the property (and the reverse mortgage pay off lol) and his belongings. I do not know where to start honestly. I have spoken to the reverse mortgage company. Can I do an affidavit or does a small estate need done as the asset total is way below the $50,000 limit? Please advise…. I have never dealt with this and am confused

  22. Mike C

    Mike C
    In response to RDLS.
    My Mom passed in 2016 with an insolvent estate. She had no Will was not Probated. She had $500 in the bank with $225 ira check of which i cannot get to either. Along with household goods (1K yard sale,5 days) which may or may not be estate worthy,not sure,(can you help with that). Debts of about 15K.
    Since Medical is a Priority claim can i just pay it and move on? Or wait for them to Probate? Medical debt was about 1K. My cremation debt is about 2200. Preceded by $400 Attorney consultations. Not sure what to do.Don’t want to mess up.

  23. Sue

    My brother resided and died in another state (not Texas). He died without a will. His only property in Texas was a one-third interest in a small Texas farm that had a value of about $30,000. He had larger out-of-state assets, where his estate was probated and his heirs were his two siblings. Is it possible to file a Texas Small Estate Affidavit?

  24. anna

    both my parents died with will, houston tx. A creditor filed claim against the estate and got dependent administrator without our knowledge and evicted us. I was told I need to file application with probate and administer my own property, what forms I need to file

  25. Eric David Miller

    I have a question my dad past away July 11 2017 I’m trying to get his truck but he didn’t leave a will his so call ex wife has the truck but was not legally married in texas I fill affidavit of heiroship and got it notarize but not I need to file it from a lawyer was is a small affidavit

  26. Michelle

    My mother passed away right before Christmas. She left no will according to her longtime attorney. She was unmarried, and only had two adult children (me and my brother). She had a homestead that currently owes $68K in a mortgage. She one installment loan (car) of $875 and $11K in unsecured credit card debt. From what I can tell from her savings and checking accounts, I don’t see much money (less than $1k). She has no 401K, life insurance, annuities. My brother and I are concerned that we’ll have to go into expensive, time consuming probate and that the homestead will be foreclosed on because we don’t have the capital to float the house for months on end. We’ve already spent $8k of our own money on the funeral. We’d like to be able to sell the home and recoup the funeral debt owed to us from the estate and possibly have a small inheritance each. Is this even possible? It doesn’t seem like a Small Estate Affidavit will help, and an affidavit of heirship won’t compel a title company to offer title insurance so we can sell the home. HELP!

  27. Amelia Esparza

    My husband has been deceased seven months without a will. I filed a temporary mortgage modification with my mortgage company, since I am on a sole income. I qualified for a three month trial but in order to move forward with a permanent modification they told me I need to file probate to determine there are no heirs to my house. My husband and I bought the house together in 2010.This house is my primary residence for my son and I who is in college full time on a scholarship. Please advise.

    Thank you,
    Amelia Esparza

  28. Amelia Esparza

    My husband has been deceased seven months, he died without a will. I filed a temporary mortgage modification with my mortgage company, since I am on a sole income. I qualified for a three month trial but in order to move forward with a permanent modification they told me I need to file probate to determine there are no heirs to my house. My husband and I were married for 28 years. I have three adult children that we had together,the youngest is 19 years old in college full time. We purchased the house together in 2010.This house is my primary residence, I live in Dallas Texas and still owe 85,000 on the mortgage. Can I file a Small Estate Affidavit for this purpose? Please advise.

    Thank you,
    Amelia Esparza

  29. El

    My mother pass with no will, what i need to do be able to pay your tax on her home that was exempted.

  30. Mark Parrish

    My wife passed away one month ago intestate. I now am raising her 18 year old son who is going to college next fall; he is an only child whom I have raise since age 2. Our community property is a homestead residence; separate property car was in her name only even though I was primary driver and joint bank account. I am the only one who worked, she was a homemaker. I’ve read Chapter 201 and its subsections. I understand my step son and I will share 50-50 with the community property; I also understand about the division of separate property. Can I use Small Estate affidavit for the homestead residence? Can I use Affidavit of Heirship for her car title with both our names on it?

  31. Ekaterina

    Hello Michell
    My father, who is Texas resident, passed away in foreign country, where he had bank account. He is not married and I am only his child. Bulgarian bank asked me to obtain Certificate of Succession in Texas. Amount in the bank is not bigger 20,000.
    Is it right form No.I-02-22 (Small Estate Affidavit) to obtain Certificate of Succession for foreign estate?
    Your answer shall be highly appreciated.

  32. Paul Lufadeju

    How does narrate a deceased’s own company and its assets with the Bank on a Small Estate Order Form?

  33. MIchelle

    I thought that an affidavit of heirship determined the chain of heirs to a real property. We are in the midst of selling my mom’s home (she died intestate) and working with a title company who is willing to let us sell the house within 3 months of her death. I thought that after the AOH that there would be a deed transfer to my brother and my names. However, they are only transferring to her estate with us vested interest. I don’t know why they aren’t putting it in our names. Am I missing something?

  34. Vicky Whitaker

    My ex-husband died with no will. He never remarried. We have 3 children together (all minors) and he does not have any other children. He owns a house, where he lived alone, a car, motorcycle and has some money in bank accounts. What is the simplest and least expensive way to probate the estate and transfer all of the assets into a trust for my 3 kids? He resided in Montgomery County, TX.

  35. Rae V

    My father passed away in 2012 and left no will. I was living with my father caring for him at the time of his death. I have 3 other siblings all of which have had no interest in the property since his passing 2 of which have just wanted to sell but my brother and I do not want to sell. I know these things can get pretty messy and im wondering what would be the best approach to this situation?

  36. Michell Bradie

    You may have been found to be the sole heir under the heirship, which gives ownership in the equity (if any) that your father had in the house. There will not be any separate deed, since the heirship establishes the ownership, just like a deed.

    It sounds like you may be confusing the ownership with the debt. The mortgage is the debt that is owed on the house, and that will still be held in your father’s name (or his estate’s name), and the mortgage company is under no obligation to change anything into your name. They still have their security interest that attaches to the property, and if the mortgage is not paid, they still have the right to foreclose on the property. They agreed to extend credit to your father when they gave him the mortgage, but they are not required to refinance or change the terms of the mortgage into your name. You could take out your own mortgage to pay off your father’s mortgage, if you like. However, you can’t force his mortgage company to work with you if they don’t want to.

    Even if you were to go through a formal probate of the estate, which would require having an Administrator appointed (which you could not do without an attorney), you may be able to get a deed prepared transferring the estate’s interest in the house to you, but you still cannot force the mortgage company to put the mortgage in your name alone unless they agree to allow you to refinance the mortgage.

  37. Michell Bradie

    It does not sound like there was ever a valid transfer of the property during your friend’s lifetime. Nor does it sound like it was properly put in a trust. If that is the case, then you would need to probate the holographic Will. That can’t be done by affidavit or or Small Estate Affidavit, which only applies when there is no Will. I strongly suggest that you speak with an attorney to assist you with this matter.

  38. Michell Bradie

    The only reason that you might consider probate would be to try to collect a percentage of your out of pocket expenses expended as priority claims, since generally cost of last illness, funeral expenses and costs of administration are paid first. However, without a Will, you can’t do a Small Estate Affidavit with an insolvent estate, and you would probably need to invest more than you could recover on a Determination of Heirship and Independent Administration by Agreement than you could ever recover. I just don’t believe that it would be worth it. I would probably recommend that you secure household goods if any of real value, and then do nothing. Maybe after a few years, the IRA and bank account will wind up as unclaimed property, and you might have another opportunity to claim it if no creditors take action.

  39. Michell Bradie

    A Small Estate Affidavit can only be used to transfer real property if the heir has a homestead right in that property. Since it doesn’t sound like the small farm was the homestead of his two siblings, the answer would be no. If there were Orders entered in the other state, you should see about having exemplified copies of those Orders admitted into Texas, and see if you can get an ancillary probate based on those Orders.

  40. Michell Bradie

    You need to hire an attorney to file an Application to Probate the Will with Issuance of Letters Testamentary, assuming that it is a valid Will that properly names an Independent Executor. This is not something that you will handle on your own.

  41. Michell Bradie

    An “Affidavit of Heirship” is a form that is used to transfer real property when someone dies without a Will, and it is filed in the real property records. This is the same name that the Texas Department of Transportation calls the form that they use to transfer title to a vehicle when someone dies without a Will and they are trying to change title and transfer it the heirs. It is a form that is available through the State’s website, and has nothing to do with real property, and is NOT filed in the real property records. You might be able to you that form as well if you have the original title.

    The Small Estate Affidavit is a probate procedure where you file with the court to have the Judge make a determination as to whom the heirs of a small estate are, and you list out the property of the estate, including any vehicles that they own, by year, make, model, and V.I.N. If the Judge signs the Order, and finds that you are the heir, and you have the title that is in your father’s name, then you would take the Small Estate Affidavit and Order over to the tax office along with the title, show it to them, and they will transfer the title into your name. Then, if the lady does not return the vehicle, you can take whatever legal action you need to in order to recover it.

    Understand that you father did not have to get legally married in Texas to be married. He could have gotten married in any other state, or jurisdiction for that matter, to be legally married. If that is the case, you need to make sure of the facts before you swear under oath on any legal document regarding heirship and marital status of your father.

  42. Michell Bradie

    Your other option, which would be a bit more expensive, would be a Determination of Heirship with Independent Administration by Agreement. The one benefit that you have is that cost of last illness, funeral expenses, and costs of administration are generally paid out first as priority claims. The unsecured creditors would be subordinate to those claims, and might also be willing to compromise and settle claims as well. Since you would have an Administrator (which you would request would be given the powers of sale), there should be no issue with getting any title policy. Hope this helps.

  43. Michell Bradie

    Depending upon your circumstances, you may be able to handle the transfer of your husband’s estate through a Small Estate Affidavit. Whether there are any other heirs that will have an interest in the house will depend upon the laws of intestacy of the state. If you and your husband were married when you bought the house, and your son was you husband’s child as well, he was born of this marriage, and he had no other children, then the house is community property and 100% of it passes to you on his death. You can take a look on our website to see how property passes under Texas’ intestacy laws.

  44. Michell Bradie

    Based on your reply, since all three children were your husband’s children all from this marriage, then the house that was purchased during this marriage is community property, and 100% of the community property passes to you when all the children are children of this marriage. The value of the house does not count in determining if you qualify for a Small Estate Affidavit. They look at the value of the estate, exclusive of your homestead. As of September 1, 2017, the deceased person’s estate, not including homestead or exempt property, must not exceed $75,000.00. Prior to September 1, 2017, the deceased person’s estate, not including homestead or exempt property, must not exceed $50,000.00. You have not told me anything about the rest of your property, but that is what you would have to look at. If you have questions, you should speak with an attorney in your area. Good luck with it.

  45. Michell Bradie

    You will probably need to find out what other assets and liabilities there are in your mother’s estate, and sit down with an attorney to find out what type of probate action is appropriate, if any. There is insufficient information for me to know if there is a solvent estate, or not, and if there is any benefit to probating your mother’s estate. That is why it is always recommended that you seek the guidance of counsel.

  46. Michell Bradie

    Mark, the answer is that you can probably use the Small Estate Affidavit. Ultimately, it is going to be up to the Judge in your particular jurisdiction. There would clearly be no problem if the homestead was going to be 100% your, but some judges in some counties are less comfortable when it is not homestead for one or more of the heirs.

    If the judge is fine with the Small Estate Affidavit, then you should also be able to deal with the transfer of title to the car without needing to do an Affidavit of Heirship through the DMV.

  47. Michell Bradie

    Since Texas does not have a Certificate of Succession, and I am not licensed to practice outside Texas, I can’t tell you what a Bulgarian bank would require with any certainty. A Small Estate Affidavit would provide something that would be signed by a Judge (assuming approved) that would list who your father’s heirs were according to Texas laws of intestate succession, which may be sufficient. However, it is supposed to list the assets within Texas that fall within the limits of the definition of a “Small Estate”. If you list the bank account of a bank in Bulgaria that hold an amount less than $20,000, I am not sure that the Judge will sign the Order, since she has no jurisdiction over property outside Texas. Can you try? Sure. Will you be successful? Perhaps if you are somehow able to let the clerk know why that property was included, the court might consider it…. I am not sure about that.

  48. Michell Bradie

    If I understand you correctly, then I would list the name of the entity, and the value of the entity on the Small Estate Affidavit. So, for example, if the Deceased owned an LLC that had a few company assets worth $5,000, and had about $6,000 in the bank, and maybe $2,000 in outstanding receivables, I would list the name of the business “Breaker Bob’s, LLC, value estimated at $13,000”.

  49. Michell Bradie

    With an Affidavit of Heirship, there is no person with authority to prepare a transfer deed into your names. Your claimed interest is established by the Affidavit of Heirship itself. The Affidavit of Heirship can be challenged, and only after it has been filed in the real property records for 5 years can the facts stated in the affidavit be taken as prima facie evidence of the facts stated therein. For that reason, a lot of title companies are hesitant about issuing title policies when there are Affidavits of Heirship.

    When a Deed is prepared, it can be a General Warranty, Special Warranty, or Quite Claim Deed that is executed. With a General Warranty Deed, the person or persons that are making that Deed are also warranting that title is good, and that they will defend title should there be an issue with it. There is no such warranty with an Affidavit of Heirship.

    If all of you decide to sell the property to someone one else, you will all need to sign on a deed transferring your interests to them at that time. That will likely be the next time that there will be a deed on the property.

  50. Michell Bradie

    Unfortunately, it will not be simple or inexpensive when someone dies without a Will and leaves minor children as heirs. The court will most likely require a Determination of Heirship with a Dependent Administration since there are minor children that will have to take in trust. Our office does not handle dependent administrations, but if you call we can try to help you find someone in the area that can help. That is just heartbreaking for your children.

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