In appropriate circumstances the distributees of an estate of a decedent who dies intestate are entitled to file a small estate affidavit to obtain decedent’s estate, without having to go through Texas probate. A small estate affidavit is governed by Texas Estates Code Chapter 205.
When Can A Small Estate Affidavit Be Used in Texas?
A small estate affidavit can be used in Texas when:
- Decedent had no valid will
- 30 days have elapsed since the date of decedent’s death.
- No petition for the appointment of a personal representative is pending or has been granted
- Decedent’s estate is valued at $75,000 or less (excluding value of the homestead if decedent was survived by a spouse and/or minor child) and other exempt property
- Decedent’s assets are greater than his/her debts
- Only non-real estate assets (bank accounts) need to be transferred
- No real estate needs to be transferred to heirs
- All heirs will sign
What Must Be Included In A Small Estate Affidavit?
Texas Estates Code section 205.002 requires that a small estate affidavit must:
Be Sworn To By
- Two disinterested witnesses;
- Each distributee of the estate who has legal capacity; and,
- If warranted by the facts, the natural guardian or next of any minor distributee or the guardian of any other incapacited distributee.
Show the Existence of The Following Conditions
- 30 days have elapsed since the date of decedent’s death;
- No petition for the appointment of a personal representative is pending or has been granted;
- The value of the estate assets on the date of the affidavit, excluding homestead and exempt property, does not exceed $75,000.
- 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.
The small estate affidavit must also indicate which assets the applicant claims are exempt.
What Happens After A Small Estate Affidavit is Filed?
After a small estate affidavit is completed, it must be filed with the court. The Texas judge may approve the small estate affidavit if the judge determines that the affidavit conforms with the requirements of the Texas Estates Code.
The certified affidavit can be used to obtain the assets of the decedent.
Can A Texas Decedent’s Homestead Property Be Transferred Using A Small Estate Affidavit?
Yes, if a decedent’s homestead is the only real property owned by decedent, title to the homestead may be transferred under a Texas small estate affidavit. The affidavit used to transfer title to the homestead must be recorded in the deed records of the Texas county in which the homestead is located.