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. Not all estates qualify for small estate administration. Heirs can use a small estate affidavit in only limited circumstances.

What Estates Qualify for Small Estate Administration?

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 seeking appointment as personal representative of the estate;
  4. The value of the probate estate is $75,000 or less, excluding the value of the homestead and other exempt property; and
  5. The total assets (excluding homestead and exempt property) exceed the total known debts of the estate (excluding debts secured by homestead and exempt property).

The Harris County Clerk’s office created a flowchart to help Texans determine whether a small estate affidavit is proper:

Gross Estate vs. Probate Estate

Note that the $75,000 limit pertains only to the value of a decedent’s probate estate, not the gross estate. The probate estate consists of property titled in the decedent’s name, excluding value of the homestead. It does not include assets placed in trust, or assets that transfer by payable-on-death accounts, transfer on death designation, or beneficiary designation.

So suppose a decedent had a $500,000 life insurance policy and a $300,000 retirement plan. If he named has wife has the beneficiary, and the value of his remaining assets, excluding his homestead, do not exceed $75,000, his estate might still qualify for small estate administration.

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

Once the affidavit is complete, you should file the affidavit with the probate court. The Court will review the affidavit to confirm that it complies with the statutory requirements. If approved, the heirs can use a certified copy of the affidavit of the estate to collect money owed to the estate or assets owned by the estate.

This article was originally published on March 3, 2017, and updated on June 10, 2020.

Comments

  1. Annette Rosas says

    My mother recently passed away with no will she isn’t married and had only my brother and I. Currently I live in her home as I moved in about 6 months ago to take care of her. She basically has her home and car. What would I need to file and/or do?
    Thank you

  2. 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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