If your loved one died without a Will, transferring his or her assets to beneficiaries can be quite difficult. If no action is taken, assets will not be properly transferred and the beneficiaries will have to take some legal action down the road to straighten out the situation. In some cases, a costly determination of heirship proceeding and dependent administration of the estate may be required.
There is one probate procedure, however, that is quite simple—if it can be used. The key is meeting Texas statutory requirements for what is called a “Small Estate Affidavit.”
What Is A Small Estate Affidavit?
A small estate affidavit is a simple action in which a formal affidavit is filed with the court. The affidavit outlines the family history of the decedent, property owned, and other facts that would determine who are the legal heirs.
The affidavit must be signed under oath by the heirs of the decedent.
When Can A Small Estate Affidavit Be Used?
This procedure can be used where there is no Will. It is the easiest and least expensive court action to handle the estate in that situation. This procedure can only be used, however, if the value of the estate, excluding a homestead and exempt assets, is under $75,000.
As defined in the statute, the homestead must be resided in by a qualifying person such as a surviving spouse or dependent child. Exempt assets could include vehicles, furniture and furnishings, and personal belongings.
Steps In The Small Estate Affidavit Procedure
If you meet all the statutory requirements listed above, these are the legal steps you would need to follow:
- All of the information needed to complete the affidavit must be gathered. This includes the family history proving who the legal heirs are, the property, and whether any of the property is claimed as exempt.
- Then, all of the heirs must sign the affidavit under oath. Rounding up all of the heirs is sometimes difficult. In addition, two disinterested witnesses who can swear to the family history also must sign the affidavit under oath.
- Once the affidavit is complete, it is filed with the probate court in the county where the decedent lived.
- A hearing is set for the county judge to take testimony in support of the facts set out in the affidavit.
- If the judge is satisfied with the truthfulness and completeness of the affidavit, he or she will sign an order approving the affidavit.
- You can then use the affidavit and the order approving the affidavit to transfer property to the heirs.
This, as you can see, is fairly easy and requires very little court action. An attorney can guide you through this process.
Cost Of The Small Estate Affidavit Procedure
The attorney’s fee for this action will depend entirely on how complicated the heirship situation is. Sometimes drafting the affidavit and getting it executed involves only one or two people, and other times, there may be many people strung out across the country who must be involved.
Because of this, the attorney's fee can range from about $1,000 to several thousand dollars. The clerk’s filing fee for this procedure is usually about $350. That is generally the only court expense.
Even though there is still a cost to using the Small Estate Affidavit procedure, this is the easiest and least expensive court proceeding to transfer assets to heirs when there was no Will. Other court proceedings if there is no Will would run several thousand dollars in attorney’s fees. These proceedings would be significantly more complicated and take much longer.
If you would like to implement one or more of these tools into your estate plan, or need to start an estate plan from scratch, contact Adair M. Buckner today for a free initial consultation*.
*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)
** Please remember that the cost estimates given are only general, ballpark numbers for the Amarillo area and the costs can vary widely depending on many variables in your individual situation.