Apr

14

2021

When Can You Do A Small Estate Affidavit Procedure In Texas?

Posted by: Adair M. Buckner

Frequently, people whose loved one dies without a Will fail to take any action to transfer property because they don't think the estate is large enough to mess with. This leaves loose ends that must be dealt with years later, when finding the people necessary to legally make the transfer is much harder. To avoid this result, the State of Texas allows the heirs to legally transfer assets at very little expense through a procedure called a Small Estate Affidavit.

hands signing contract

What Is A Small Estate Affidavit Procedure?Close up of attorney and client hands signing law contract

A Small Estate Affidavit Procedure can be used where there is no Will and specific criteria are met. It is the least expensive court action to handle an estate if there is no Will. This 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.

This procedure only can be used, however, if the value of the estate, excluding a homestead, 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. Thirty days must have passed since the date of death.

The affidavit must be signed under oath by the heirs of the decedent. It also must be sworn to by two disinterested witnesses who are familiar with the family history.

Steps In The Small Estate Affidavit Procedure:

  • All of the information needed to complete the affidavit must be gathered. The statute sets out specifically what information must be included in the affidavit, such as a full family history, a list of the assets owned by the decedent and their value, who is living in the homestead, and that the value of the estate exclusive of the homestead is less than $75,000.
  • All of the heirs then must sign the affidavit under oath. Rounding up all of the heirs is sometimes difficult. Frequently, services such as Ancestry.com or people locator websites must be used to help identify and track down distant heirs. In one case, I had 28 heirs spread all over the country and one in Germany!
  • Two disinterested witnesses who know the family history and are willing to swear under oath that the family history is true must be located also and sign the affidavit under oath. These individuals couldn't stand to benefit from the estate.
  • 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. At least one heir must appear at the hearing and the judge may also require one of the independent witnesses to appear.
  • 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 order approving the affidavit to transfer property.

This, as you can see, requires very little court action. The hard work is in preparing the affidavit.

If you would like to talk about more about probate or administration of an estate, please call Adair M. Buckner for a free initial consultation.*

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*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

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