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, there are alternatives to it, such as the small estate affidavit.
When a Texas resident dies with minimal assets, their estate may qualify to bypass formal probate through the use of this document.
What is a Small Estate Affidavit?
A 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).
This document 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.
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
Small Estate Affidavit Requirements
To file a small estate affidavit in Texas:
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, it must be filed 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 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, the distribution of assets can begin.
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.
The affidavit must be signed by the affiant before a notary public and by two disinterested witnesses who are not heirs or beneficiaries of the decedent.
Advantages of Using a Small Estate Affidavit
Utilizing a small estate affidavit to transfer property has several advantages:
- Avoids lengthy, expensive probate process
- Provides faster access to assets for heirs
- Lower administrative costs without court oversight
- Typically a simpler transfer process
But care should be taken to properly complete the affidavit.
The Takeaway
For small estates in Texas, probate can often be sidestepped using a streamlined small estate affidavit procedure. This simplified process saves heirs significant time and expense. But the affidavit’s limitations and requirements must be carefully followed to ensure smooth, legal transfer of assets.
With proper estate planning, many Texas residents can benefit from the small estate affidavit.
Our Dallas Probate Attorneys provide a full range of probate services to our clients, including helping with small estate affidavits. Probate is what we do. 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.
Disclaimer: 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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