What is a Small Estate Affidavit?

Some people die without a Will but have very little in terms of probate assets. They may have owned a modest home, and had a small checking and savings account, but nothing more. In such situations, probate seems like overkill.

“Is there an easier way?” I often get asked.

In Texas, heirs can take advantage of a Small Estate Affidavit procedure in certain limited situation. Heirs can file a Small Estate Affidavit if:

  1. The deceased person died without a Will;
  2. At least 30 days have passed since the date of death;
  3. No person has filed an application to be appointed as personal representative of the estate;
  4. The value of the probate estate is $75,000 or less, not counting the value of the homestead and other exempt property; and
  5. The total assets (not counting homestead and exempt property) exceed the total known debts of the estate (exclusive of debts secured by homestead and exempt property).

The affidavit must list all know estate assets and liabilities, the name and address of each distributee, and the relevant family history that shows how who the heirs are are what percentage of the estate they inherit under the intestacy statutes.

It must also be signed by two disinterested persons, all distributees of the estate who have legal capacity, and the natural guardian or next of kin of a minor or an incapacitated heir.

Once the affidavit is complete, it should be filed with the probate court, which will review the affidavit to confirm that it complies with the statutory requirements.  If approved, a certified copy of the affidavit can be used by the distributees of the estate to collect money owed to the estate or assets owned by the estate.

Small estate affidavits do not ordinarily transfer title to real property, except for the homestead. Therefore, if the decedent owned real property other than the homestead, a small estate affidavit would not work.

Comments

  1. Great info!
    Our father passed and our mother is still alive and is the surviving spouse (no previous marriage). Dad had a Soc Sec Direct Deposit account that did not have POD/TOD set up (less than 10k). What if a sibling refuses to sign the SAE?
    Are there other options to release funds from a bank account that did not have an assigned POD/TOD?

    • The Small Estate Affivavit needs to be executed by all distributees (those entitled to inherit) and two disinterested witnesses. Intestacy statutes provides surviving spouse will inherit all community property if all the deceased spouse’s children are also the children of your surviving spouse.

  2. nodakgal49 says

    Thanks you for a great website! You are really helping people out!
    If the only assets in an estate are a checking and savings (the bank accounts did not have any beneficiaries or POD designations) with a combined value of $6,000 and a vehicle worth $5000, would a small estate affidavit still need to be filed with the court in order to get the bank accounts released?
    It’s my understanding that an Affidavit of Heirship can be filed to change title on the car.

    • If financial accounts do not have POD or TOD beneficiaries identified, a bank will not release funds. Small Estate Affidavits can be an affordable way to transfer property to a decedent’s heirs if the estate qualifies for the procedure.

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