A Texas Small Estate Affidavit is a legal document used to help heirs of an estate receive the property of someone who has passed away without having to go through the traditional probate process.
Probate is the legal process by which a decedent’s estate is distributed to their heirs. Unfortunately, the process is lengthy and can be expensive.
However, in certain circumstances, you may be able to use a small estate affidavit to simplify the process.
About the Small Estate Affidavit
A Texas Small Estate Affidavit is not a probate per se. It is an alternative to a probate.
No personal representative is appointed when the Small Estate Affidavit is used.
It is a legal document used in Texas to transfer the assets of a deceased person to their heirs or beneficiaries. It is designed to simplify the process of transferring property when the estate is considered “small” under Texas law, meaning that the value of the estate is less than a certain amount (currently $75,000).
The Texas Small Estate Affidavit allows the heirs or beneficiaries to bypass the formal probate process. Instead, they can use the affidavit, which is signed off on by the probate court, to claim the property.
To use the Small Estate Affidavit in Texas, the person claiming the property must fill out the affidavit form and provide supporting documentation, such as a death certificate and a list of the deceased person’s assets and debts. The affidavit must also be signed by two disinterested witnesses who are not heirs or beneficiaries of the estate.
1. When Can a Small Estate Affidavit Be Used?
A small estate affidavit may be used if:
- The assets are worth more than the debts
- The decedent died without a will
- The value of the decedent’s property does not exceed $75,000
- The decedent’s debts are paid or will be paid
- The only real property to be distributed is the decedent’s homestead
- All of the heirs can be found, and all of the heirs will agree to the use of the Small Estate Affidavit (or agree not to file a contest)
- No probate application is pending or has been granted
2. How to File
To file a small estate affidavit in Texas, you will need to:
1) Collect the necessary documents. Including the deceased person’s death certificate, a list of their assets, debts, and other documents.
2) Fill out the affidavit form, which has to confirm that the following conditions are met:
- At least 30 days have elapsed since the date of the decedent’s death.
- No petition for the appointment of a personal representative is pending or has been granted.
- The value of the estate assets, excluding homestead and exempt property, does not exceed $75,000 on the date of the affidavit.
- An affidavit that meets the requirements of Section 205.002 is filed with the clerk of the court that has jurisdiction and venue of the estate.
- The judge approves the affidavit as provided by Section 205.003.
- The distributees comply with Section 205.004.
The affidavit must also include a list of all known estate assets and liabilities, the name and address of each distributee, and the relevant family history facts concerning heirship that show each distributee’s right to receive estate money or other property or to have any evidence of money, property, or other right of the estate as is determined to exist transferred to the distributee as an heir or assignee.
3) File the form with the court. Once the form is complete, you must file it with the probate court in the county where the deceased person lived.
4) Wait for the court to approve the affidavit. The court may request additional documents or information before approving the affidavit.
5) Provide a copy of the affidavit as required by the Texas Estates Code. The Code requires the distributees of the estate, who are entitled to the decedent’s assets under Section 205.001, provide a copy of the affidavit filed under this chapter to certain persons who have a relationship with the estate.
The following persons must receive a copy of the affidavit:
- Persons who owe money to the estate – this includes anyone who owes a debt to the decedent or the estate, such as credit card companies or lenders.
- Persons who have custody or possession of estate property – this includes anyone who has possession of the decedent’s assets, such as a landlord who has a security deposit or a storage company that is holding personal property.
- Persons who act as a registrar, fiduciary, or transfer agent of or for an evidence of interest, indebtedness, property, or other right belonging to the estate – this includes anyone who has a legal obligation to keep track of the decedent’s assets or obligations, such as a stock transfer agent or a bank that holds a mortgage on the decedent’s property.
6) Once the affidavit is approved, you can begin distributing assets according to state law.
7) If the estate includes a homestead, the affidavit has to be filed into the real property records. The Texas Estates Code says that the Affidavit used to transfer title to the homestead must be recorded in the deed records of a county in which the homestead is located. This recording provides notice to anyone who may have an interest in the homestead, such as creditors or potential heirs.
A bona fide purchaser for value may rely on the affidavit recorded under this section. A bona fide purchaser for value without actual or constructive notice of an heir who is not disclosed in the recorded affidavit acquires title to a homestead free of the interests of the undisclosed heir, but remains subject to any claim a creditor of the decedent has by law. A purchaser has constructive notice of an heir who is not disclosed in the recorded affidavit if an affidavit, judgment of heirship, or title transaction in the chain of title in the deed records identifies that heir as the decedent’s heir.
However, if an heir who is not disclosed in the recorded affidavit later comes forward, they may still have a claim to the homestead. They may recover from an heir who receives consideration from a purchaser in a transfer for value of title to a homestead passing under the affidavit.
If you have any questions about filing a small estate affidavit in Texas, it is best to consult with an experienced probate attorney.
3. What Are the Benefits?
The benefits of filing a small estate affidavit in Texas include:
1. The process is simpler and faster than going through probate court.
2. The costs are typically lower than going through probate court.
3. Beneficiaries can receive their inheritance quickly.
4. It requires minimal paperwork.
5. There is no need to post an estate bond.
A Texas Small Estate Affidavit is an important tool for those administering the estates of loved ones who have passed away. With the benefits of filing a small estate affidavit in Texas, you can quickly and efficiently distribute the assets of your loved one’s estate.
Keep in mind, the affidavit must be filed within four years of the deceased’s passing and you will need two or more witnesses in order to properly file the affidavit.
With these tips in mind, we hope that you now feel better equipped to navigate a small estate affidavit effectively and efficiently.
Do You Need an Experienced Probate Attorney to Help?
Ultimately, the answer to this question depends on a few factors.
First, you should consider the size of the estate. If the estate is small, hiring a probate attorney may not be necessary. You may be able to handle the probate process yourself with the help of some online resources or by working with the court directly.
Second, you should consider the complexity of the estate. A probate attorney can ensure that everything is handled properly, if the estate is complex.
Third, you should consider your own personal level of comfort with handling legal and financial matters. If you are not comfortable handling these matters yourself, it may be best to hire a probate attorney to help take care of things for you.
Fourth, you should consider the cost of hiring a probate attorney. Probate attorneys typically charge by the hour, so if your estate is small or simple, it may not be necessary to spend the money on an attorney.
However, if your estate is large or complex, hiring a probate attorney may save you time and money in the long run.
No matter what size or complexity your estate is, it is important to take the time to consider whether you need to hire a probate attorney. Doing so will help ensure that the probate process goes as smoothly and quickly as possible.
Our Houston Probate Attorneys provide a full range of probate services to our clients. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
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