Not everyone has a will or a substantial estate. When someone passes away and their assets appear to be limited to a family home and a modest bank account, going through probate seems like a waste of time and money.
Fortunately, there is an easier way. In Texas, heirs can use a process known as a small estate affidavit (Texas Estates Code Chapter 205) if all of the following information is true:
● The decedent did not appear to have left a will
● At least 30 days have passed since they died
● No one has applied for an appointment as personal representative of the estate
● The probate estate is valued at no more than $75,000, not including exempt property
● The estate’s total nonexempt assets exceed its total known debt (does not include debt secured by the homestead and other exempt assets)
Exempt property includes:
● The homestead for the use and benefit of a surviving spouse and minor children.
● Up to $100,000 ($50,000 for a single adult) worth of property intended for the use and benefit of a spouse, minor children, unmarried adult children still living at home, and incapacitated adult children. Examples of applicable property include home furnishings, clothes, and a limited amount of jewelry.
Small estate affidavits don’t typically transfer title to any real estate except the homestead, so if your deceased loved one owned real property, this affidavit cannot be used. If they didn’t own any other property, a small estate affidavit is an efficient and cost-effective way of settling a small estate.
Who Can File?
To file a small estate affidavit, you must be a party who would inherit under state intestacy law, such as a spouse or child or, if the decedent was unmarried and had no children, another close relative. If the only heir is a minor, their guardian or next of kin can file the affidavit on their behalf.
What Information Does the Affidavit Contain?
A small estate affidavit must list the following information:
● Name and address of the decedent
● Date of death
● All of the estate’s known assets and liabilities
● Each distributees name and address
The affidavit must be signed by:
● All estate distributees who have legal capacity
● The guardian or next of kin of any incapacitated heirs or minors
The completed affidavit should be filed with the probate court, which will confirm that it complies with all legal requirements. Once approved, distributees can use a certified copy of the affidavit to collect estate assets or money owed to the estate.
Affidavit of Heirship
You must file the small estate affidavit with a document called an affidavit of heirship. This state form, which has to be completed by a disinterested third party, includes the following:
● The names and addresses of all witnesses
● Their relationships to the deceased
● The decedent’s date of death
● Information about the decedent’s marital history
● A family history that lists the heirs and the percentage of the estate that they inherit under the laws of intestacy
What If You Don’t Know How Much Money Your Loved One Had?
At one time, many low-income people in Texas faced a dilemma when they wanted to file a small estate affidavit but weren’t sure how much money the decedent had in their bank account. The only way to find out was to file a suit in probate court. In some cases, the cost of the lawsuit was more than the amount in the account.
The Texas Access to Justice Commission worked with the 84th Legislature to pass a law allowing the courts to order a financial institution to confirm how much money was in a deceased person’s account. Knowing the account balance made it easier for the person handling the estate to determine if a small estate affidavit can be filed.
Contact a Texas Estate Planning Attorney
If you believe that your loved one’s estate may qualify for a small estate affidavit, it’s still recommended that you consult with a Texas probate attorney to confirm.
At Romano & Sumner, we can help you confirm eligibility by verifying that assets like life insurance annuities and payable on death accounts don’t cause the estate to exceed $75,000. For more information on how we can assist when a loved one dies without a will in Texas, contact Romano & Sumner today.