Probate

What To Do When Someone Dies Without A Will

What is a Small Estate Affidavit?

by Rania Combs

Occasionally, 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.

Their loved ones often ask: “Is there an easier way?”

What is Considered a Small Estate in Texas?

In Texas, heirs can take advantage of a Small Estate Affidavit procedure in certain limited situations. 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 applied for appointment or is currently serving as a 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. It must also include the name and address of each heir, and the relevant family history that shows how who the heirs are and what percentage of the estate they inherit under the Texas intestacy statutes.

Two disinterested witnesses must sign the affidavit. Additionally, all heirs of the estate who have legal capacity, and the natural guardian or next of kin of a minor or an incapacitated heir, must sign the affidavit.

Once the affidavit is complete, it is necessary to file it with the probate court. The court will review the affidavit to confirm that it complies with the statutory requirements. If it meets all the statutory requirements, it

What is the purpose of a Small Estate Affidavit?

A small estate affidavit is a cost-effective way to transfer property to a deceased person’s heirs. If approved, heirs can use a certified copy of the affidavit to collect money creditors owe to the estate or assets that belong to the estate. It eliminates the need to go through a formal probate proceeding to

When Can I Use a Small Estate Affidavit?

Small estate affidavits do not ordinarily transfer title to real property. There is an exception for homestead property when the decedent was married or has minor children who resided on the property. If the decedent is was not married and does not have any minor children who resided with him, a small estate affidavit will not work.

What Does It Cost to File a Small Estate Affidavit?

Every county has a schedule of fees to file a Small Estate Affidavit. The cost varies from county to county, so you should call the clerk’s office of the county where you reside to learn what the fees will be.

For more information, see: When Is It Proper to Use a Small Estate Affidavit?

Learn more about Texas Probate –>

This article was originally published on September 9, 2015, and updated on June 7, 2021.

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Comments

  1. nodakgal49

    June 5, 2019 at 3:21pm

    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.

    1. Rania Combs

      June 5, 2019 at 6:26pm

      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.

  2. Casimiro

    October 24, 2019 at 12:06am

    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?

    1. Rania Combs

      October 24, 2019 at 12:43pm

      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.