Because probating a will can be expensive and take many months, states often provide an exception to the probate process for estates below a certain size. In Texas, however, a small estate affidavit is offered only where there is no will (also referred to as dying intestate) and for estates with a value of $75,000 or less. With some simple paperwork, your loved one's estate can be distributed without a costly court proceeding.
Who files a small estate affidavit in Texas
To be able to file a small estate affidavit in Texas for a loved one, when no will was executed, you must be a person who would inherit under Texas intestacy law (this is generally the spouse and children, or other close relatives if there are no spouse or children). If the only person who can inherit is a minor, then either the other legal parent of the child (if the parents are not married) or the child's guardian or next of kin can file the affidavit on their behalf.
Which estates qualify
To qualify for this expedited procedure:
- Thirty days must pass between the date of death and the filing of the form.
- The deceased must not have left a will.
- There must be no petition for the appointment of a personal representative pending or granted.
- The value of the estate, not including the homestead (personal residence that passes only to the surviving spouse and minor children) and other exempt property (vehicle, home furnishings, tools, and livestock) does not exceed $75,000 (the Texas small estate affidavit limit) and is more than the total of the debts owed by the estate.
- There is no real estate other than the homestead included in the estate.
Small estate affidavit process in Texas
Each county has its own specific form for the small estate affidavit, so obtain the form from the website or office of the probate court in the county in which your loved one was a resident. Although each form is slightly different, they all require the following information:
- Name and address of decedent
- Date of death
- Description of assets
- Description of debts
- Names and addresses of distributes
- Signatures of distributees
The affidavit must be signed by:
- Each distributee under Texas intestacy law who is of legal capacity
- The guardian or next of kin of any distributee who is a minor or legally incapacitated
In addition to the small estate affidavit form, you must also file an affidavit of heirship, which is a state form (but might be included with the local form) and must be completed by a disinterested third party who will not inherit from the estate. The form must include:
- The witnesses' names and addresses
- Relationships to the decedent
- Decedent's date of death
- Decedent's marital history
- Decedent's family history (children, grandchildren, parents, siblings, nieces/nephews)
The witnesses must sign the form in the presence of a notary. Once you complete the small estate affidavit and the affidavit of heirship, you must file them with the clerk of the court at the probate court in the county where the deceased was a resident. Some courts require a copy of the death certificate to be filed with the forms. The fee to file the forms will vary by county. The judge must approve the small estate affidavit for it to be valid. Once the form is approved, you can use it to request distributions of assets that were owned by the deceased and are being held by companies or people.
As stated above, the Texas small estate affidavit applies only where there was no will in place. In order to avoid the need to follow these procedures, you may want to work with an online services provider to help ensure all estate planning documents are accurate and up-to-date.
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