When someone who owns very little dies without a will, going through the probate process may not be cost-effective. In Texas, heirs to a small estate have the option to transfer ownership of property using a small estate affidavit instead of probate.
You can use a small estate affidavit to transfer property without the need for a full probate if:
You can use the small estate affidavit to transfer property to the decedent’s heirs. The decedent’s heirs are those persons who are entitled to inherit property under Texas law. This usually includes the surviving spouse, children, etc.
The general rule is that you can transfer any property owned by the decedent. This includes real and personal property.
There are some limitations on real property. You can only transfer the title to real property that qualifies as a homestead. The term “homestead” refers to the residence owned by the person who passed away.
The homestead may include:
The homestead can also be in leased land, but the deceased should own the structure.
The homestead can only be transferred by a small estate affidavit if it passes to the surviving spouse or minor children.
You cannot transfer ownership of a property that does not qualify as a homestead with a small estate affidavit. So, a small estate affidavit cannot be used for a decedent who owned rental properties.
The Texas Estates Code and Texas Property Code set out certain minimum assets that the surviving spouse and/or minor children are entitled to. These assets include:
These assets are not counted in the $75,000 limitation for the small estate affidavit.
Other assets, like an ordinary bank account, are not exempt. So, these assets count towards the aggregate limit of $75,000.
You need to file your sworn small estate affidavit along with the clerk of the court. The affidavit should include:
Your affidavit should also include the following information:Your affidavit should also include the following information:
Your affidavit should also include the following information:
You need to file the affidavit with the county clerk.
The court will review the affidavit and approve the request if it complies with the statutory requirements. The court may request a hearing on the affidavit. Practices vary from one county to another.
Upon approval, the county clerk will record the affidavit as an official public. In some counties, this occurs automatically, but in others, you may have to file a certified copy in the deed records for any county in which the decedent owned property. This step may be necessary to transfer real estate located in that county.
You need a certified copy of the affidavit to prove your right as the heir.
While filing a small estate affidavit can be less complicated than a full probate, you still may need to hire an attorney to prepare and file it for you. Many courts will not let you file the affidavit without an attorney if there are multiple heirs, etc.
An experienced probate attorney can help you identify whether you are eligible for a small estate affidavit, maximize your exemptions, and assist with getting the court to approve the small estate affidavit.