Small Estate Affidavit
In Texas, Small Estate Affidavits represent a middle-ground solution for finalizing the affairs of a deceased person who did not leave a valid will. It is cheaper and less time consuming than a Determination of Heirship, with or without the need for estate administration, because Texas courts do not typically require a hearing for a Small Estate Affidavit. It is more expensive and time consuming than an Affidavit of Heirship, however, because a Small Estate Affidavit requires both a court filing and the services of a probate attorney.
Unfortunately, Small Estate Affidavits are available only in limited circumstances. To qualify, the following requirements must be met:
- The decedent must have died without a will;
- The only real property that needs to be transferred from the estate is homestead property, and even then the transfer must be to a heir living with the decedent who can qualify for a homestead exemption;
- Estate property other than the homestead and other exempt property must be valued at less than $75,000; and
- The estate must be solvent, meaning that its debts (other than those secured by the homestead property) must not exceed its assets.
Even if the estate qualifies, there are further requirements on the Small Estate Affidavit itself. The affidavit must:
- list all of the decedent’s property, including community property, with sufficient detail;
- list all of the debts owed by the estate, including those owed to the attorney who prepared the affidavit;
- list the decedent’s marital and family history and a breakdown of how much of the estate each heir is entitled to;
- state whether or not the decedent received Medicaid;
- be sworn to by all surviving heirs in front of a notary public;
- be sworn to by two disinterested witnesses, that is, two people not receiving any property from the estate; and
- filed in a county with jurisdiction under the Texas Estates Code.
In San Antonio the Probate Courts have what is known as a submission docket for Small Estate Affidavits. A submission docket means that the affidavit is reviewed and approved by the judge without the need for a hearing. After the affidavit is approved, it can be used to transfer money to heirs from banks and most other financial institutions.
Contact a Texas probate attorney today for a free consultation regarding a Small Estate Affidavit.