When is it Proper to Use a Small Estate Affidavit?

A small estate affidavit is a legal document that can be used to transfer property to heirs without a formal probate. The use of a small estate affidavit is permitted in only limited circumstances.

In Texas, heirs can take advantage of 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 $50,000 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 Harris County Clerk’s office has created a wonderful flowchart to help Texans determine whether a small estate affidavit is proper to use in their given circumstances:

Harris County also provides a small estate affidavit form (pdf), as well as instructions for filling it out.

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.

Comments

  1. My father passed on in 2002. My 84 year old mother has been diagnosed with dementia and has no will. Can she legally complete one now, or even make one of her five children the executor of her estate. She has five children and an extensive amount of property.

    • In order to sign a Will, a testator must have testamentary capacity, which means that the testator have the mental ability to understand: the business in which he/she is engaged, the effect of making a will, the nature and extent of his/her property; the persons who are the natural objects of the testator’s bounty; the fact that he/she is disposing assets; and how all these elements relate so as to form an orderly plan for the disposition of the testator’s property.

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