Texas Small Estate Affidavits and Avoiding Probate

Table of Contents

What Is The Texas Small Estate Affidavit

How Do I Settle A Small Estate

What Is The Purpose Of A Small Estate Affidavit

What Is Considered A Small Estate

How Do You File A Small Estate Affidavit

When dealing with the modest estate and minimal assets of a decedent individual, avoiding probate can help save you and your loved ones ensure that the deceased’s inheritance isn’t eaten away by fees and taxes. Estate settlement through probate is costly.

Luckily, the state of Texas has enacted laws that allow executors to handle estate settlement by filing for a Small Estate Affidavit. According to the Texas Estates Code Chapter 205, you may be eligible to file for a Small Estate Affidavit if the estate meets these requirements:

• The decedent died without a will;
• 30 days have elapsed since the death;
• Decedent left less than $75,000 in property;
• Assets of the decedent are worth more than the debts of the decedent;
• There is no petition for the appointment of a personal representative;
• All heirs agree to sign the Small Estate Affidavit;
• Judge approves affidavit.

According to Texas law, the only people authorized to file a Small Estate Affidavit are the direct heirs of the deceased, such as an adult child or a living spouse.

Basically, if you’re someone who would inherit under Texas’ intestacy laws, then you’re authorized to file the affidavit. If there is no adult relative of the decedent, an underage heir may have a guardian file on their behalf.

If there are no direct relatives to file the affidavit, another relative can do so. Two disinterested witnesses are also required to sign the affidavit and must do so before a notary public.

When someone passes away, their will, along with their belongings and assets often go through a process known as probate. Many surviving families of deceased Texans are forced to endure months of costs and bureaucracy while organizing the distribution of assets and inheritances.

The process is arduous and can lead to financial and emotional strain for survivors of a decedent. As an estate executor, you should be aware of the option to settle a small estate outside of probate and avoid excessive fees and taxes. The Small Estate Affidavit can assist those settling a modest estate.

While many estates require going through probate to validate the will, appoint an executor, and transfer property and assets to heirs, an individual granted a Small Estate Affidavit will not have to pay the often exorbitant fees involved with estate settlement through probate. The purpose of this affidavit is to expedite the process of transferring property and assets in the absence of a will at an affordable cost.

A "small estate" in the state of Texas is an estate that has a monetary value less than or equal to $75,000. Asset calculation does not include the homestead of surviving spouses/children or other exempt assets, such as personal property. If you determine that the decedent's estate value did not exceed $75,000 you can file for the affidavit in the appropriate court.

After you determine that the estate is eligible to file the affidavit, contact the court that has jurisdiction over estate settlement. This will be the county in which the deceased was a resident.

Ensure you obtain the correct paperwork, including:

• The official certificate of death;
• A complete list of the deceased's assets and debts;
• The names and addresses of those who will inherit the assets under intestacy laws;

The signatures of those who will inherit the assets stating that they agree to a Small Estate Affidavit.

You may need to determine what shares go to which heirs prior to filing the affidavit. Ensure all distributees agree to the terms of the distribution of assets.

Once a judge grants the affidavit, a copy can be given to any creditors the estate may have had. Small Estate Affidavits can prove to be cost-effective and time-saving for both you and the clients you diligently serve.

If you’re curious to learn more about Small Estate Affidavits and whether your loved one’s estate qualifies for one, get in touch with us for a free consultation and learn how we can help.