probate lawyer Farren Sheehan
When a person dies intestate (without leaving a Will), it is not always necessary to go through a full probate process in court to distribute the decedent’s property to rightful heirs. There are less expensive alternatives that family members may use, depending on the size of the estate and the type of property that was left. A Small Estate Affidavit is generally used when someone dies without a Will and the total value of the estate, not including the value of a homestead or exempt property, is less than $50,000.
In this article, we will discuss Small Estate Affidavits and how they generally work in Texas. If you are in the Austin, Cedar Park, Round Rock, or Pflugerville areas and have questions about Small Estate Affidavits, contact
for an initial consultation.
When May Small Estate Affidavits Be Used in Texas?
Small Estate Affidavits may be filed in the county probate court
after 30 days following the date of the decedent’s death. They are used when a person dies intestate (without leaving a Will), and the family wishes to distribute the estate without appointing a personal representative. The value of the estate assets, excluding a homestead and exempt property, may not exceed $50,000. Usually this is the case when a person died with just a few assets, like a bank account, savings bonds, car, and maybe a homestead.
Small Estate Affidavits do not transfer title to real property other than a person’s homestead. Therefore, if a person died intestate owning real property other than his or her homestead, the family would not be able to use a Small Estate Affidavit to transfer title to that real property.
Small Estate Affidavit Requirements
A Small Estate Affidavit must be sworn by multiple parties, including:
- Two disinterested witnesses
- Each distributee of the estate who has legal capacity
- If warranted by the facts, the natural guardian or next of kin of any minor distributee, or the guardian of any other incapacitated distributee
A Small Estate Affidavit must state that it has been more than 30 days since the date of death of the decedent, that no petition for appointment of a personal representative has been filed or granted, and that the value of the estate assets, excluding homestead and exempt property, do not exceed $50,000.
In addition, a Small Estate Affidavit must include:
- A list of all known estate assets and liabilities;
- The name and address of each distributee; and
- The relevant family history facts concerning heirship that show each distributee’s right to receive estate money or other property, or to have any evidence of money, property, or other right of the estate (as is determined to exist) transferred to the distributee as an heir or assignee.
The court must approve the Affidavit before it may be used to transfer title, which is within the judge’s discretion and is not mandatory. Once a Small Estate Affidavit is approved by the probate court, the effect of the court’s order is to allow the Texas laws of descent and distribution to operate on the property.
Title to Homestead Transferred
If a decedent’s homestead is the only real property in the decedent’s estate, title to the homestead may be transferred under a Small Estate Affidavit, which must be recorded in the deed records of the county in which the homestead is located. A bona fide purchaser for value may rely on a recorded Small Estate Affidavit.
If the purchaser did not have actual or constructive notice of an heir who was not disclosed in the recorded affidavit, the purchaser takes title to the homestead free of the interests of the undisclosed heir, but remains subject to any claim a creditor of the decedent has by law. A purchaser has constructive notice of an heir who is not disclosed in a recorded affidavit if an affidavit, judgment of heirship, or title transaction in the chain of title in the deed records identifies that heir as the decedent’s heir.
How a Sheehan Law, PLLC Probate Attorney Can Help
Someone considering a Small Estates Affidavit should hire a probate lawyer to review the estate to determine and advise her client as to whether the estate meets the statutory requirements, and to guide them to the best course of action in their specific situation. A probate attorney can also prepare necessary legal documents, ensure that they are executed properly, and file them where needed.
Attorney Farren Sheehan in Pflugerville is experienced in all probate and non-probate matters, including alternatives to probate and Small Estate Affidavits. Call the office of Sheehan Law, PLLC at (512) 251-4553, or fill out our online contact form
with any questions you have regarding probate or alternatives to probate in Travis County or the Austin area, and we will be happy to set up a consultation to discuss.