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Small Estate Affidavit

The Small Estate Affidavit

The small estate affidavit is one of the alternatives to a full probate administration in Texas.  It can provide a streamlined and inexpensive method for probating an estate.

When is the Small Estate Affidavit Used?

As its name implies, it is used for smaller estates with few assets.  It is typically used for estates consisting of bank accounts with small balances and/or personal residences.  It may also be used for larger estates if the majority of the assets pass outside of probate. The small estate affidavit generally cannot be used if the decedent had significant debts or the decedent owned rental or commercial real estate.

Requirements for the Small Estate Affidavit

Texas law provides several requirements that must be met for a small estate affidavit to be used:

  1. There was no last will and testament.
  2. At least 30 days have passed since the decedent died.
  3. No other person has filed a probate for the decedent’s estate.
  4. The decedent:
    1. Did not own any real estate or
    2. Only owned a residence used as a homestead* and the applicant is the decedent’s spouse or child.
  5. Excluding the value of the residence (in number 4(b), above), a vehicle, home furnishings, tools and livestock, the value of all other property is less than $75,000.**   
  6. The estate is solvent, i.e., assets exceed liabilities.
  7. The decedent’s property will only pass to the decedent’s spouse or child.***
  8. All of the heirs agree to the affidavit.

* The term “homestead” means a separate (stand-alone) structure, condominium, or a manufactured (mobile) home.  It can also include up to 20 acres of land.

** There are several other types of property that are to be excluded.  Texas law defines this as non-exempt property, which is all property that is outside of the statutory list of exempt property.  Exempt property is that property which is exempt by law from forced sale, including home furnishings, farm animals, and other property in the possession of the decedent at death, as well as decedent’s pension benefits, IRAs, and insurance benefits.

*** Texas law provides for the distribution of assets when there is no will.  The heirs will vary based on whether the decedent was married, whether he had children, and who else is alive at the time the decedent died.  Here is more information about what happens when a decedent dies without a will in Texas.  

The formal notice requirements for probates are not always required with small estate affidavits.  Some courts have chosen to require, at a minimum, poster citation for small estate affidavits to give at least some notice to creditors and the public.

Contents of the Small Estate Affidavit

Texas law provides several items that must be included in a small estate affidavit.  This includes having the small estate affidavit sworn to by:

  1. Two disinterested witnesses,
  2. Each distributee of the estate who has legal capacity, and
  3. If warranted by the facts, the natural guardian or next of kin of any minor distributee or the guardian of any other incapacitated distributee.  

The small estate affidavit must also:

  1. State that thirty days have passed since the date of the decedent’s death,
  2. State that no petition for appointment of a personal representative is pending or has been granted,
  3. Provide the value of the assets is less than $75,000, as noted above,
  4. Include a list of all known estate assets,
  5. Include the name and address of each distributtee,
  6. Include the relevant family history, and
  7. Include a list of any exempt assets.  

The Texas probate courts and some county courts have created a standard application to help ensure that the affidavit includes information to satisfy these requirements.  

Filing the Small Estate Affidavit

The small estate affidavit can generally be filed in any county in which probate could be initiated.  There are a number of jurisdictional rules that apply in making this determination, some of which we addressed previously here.

The small estate affidavit is filed with the appropriate clerk for the probate court’s approval.  Practices vary, but the probate court will likely require a court hearing before it approves the affidavit.  The courts frequently reject small affidavits given non-compliance with the requirements and items that have to be included in the affidavit.  It is common for the courts to require affidavits to be re-submitted to correct these compliance issues.

How to Use the Small Estate Affidavit

Once approved, the small estate affidavit can be provided to the decedent’s creditors, parties who have custody or possession of the decedent’s property, etc.  

The small estate affidavit can also be filed in the appropriate clerk’s office to transfer title of the decedent’s homestead.  

If a person to whom the affidavit is delivered refuses to pay, deliver, transfer, or issue property as called for in the affidavit, the applicant can use the courts to obtain the property.

Liability of the Small Estate Applicant

The small estate applicant is relieved of liability much as the personal representative is under a regular probate in Texas.  This is true even if the applicant did not see the application or inquire as to the truth of the statements in the affidavit.

The distributees who receive property under the affidavit are still liable to any other parties who have a superior right or claim to the property.  Moreover, any party who signs the affidavit is liable for any damage or loss to any person that arises from a payment, delivery, transfer, or issuance made in reliance on the affidavit.

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