There are times when an individual passes, but there is no need for a formal administration of their estate or the issuance of Letters Testamentary. An easier procedure may be desired to transfer assets of such an estate.

For example, relatives of a decedent may only need to obtain access to a small amount of funds of the deceased held in a bank account. It might not be economical to pursue a probate administration to obtain these funds.

The Texas Small Estate Affidavit is designed for this purpose. If a properly filed Small Estate Affidavit is accepted by the Court, the Court will issue an Order authorizing the heirs of the decedent to collect and distribute the decedent’s property without further administration of the estate.

The affidavit, however, can only be used in certain situations. The following requirements must be meet before the Small Estate Affidavit procedures may be employed:

  1. The decedent did not leave a will;
  2. The estate is solvent, that is the assets of the non-exempt assets of the estate exceed the liabilities of the estate not secured by exempt property;
  3. The non-exempt estate assets do not exceed $75,000;
  4. No application has been filed to administer the estate;
  5. Thirty days or more has passed since the decedent died.

Whether property is exempt is important in calculating the eligibility to take advantage of this procedure. Simply speaking, exempt property is property which is protected under Texas law from collection efforts by a creditor attempting to collect on a debt.

The homestead is exempt property. So the value of a homestead would not be used in determining whether the estate was worth less than $75,000. Other property may be exempt as well. An experienced attorney can help determine the exempt and non-exempt assets of the estate.

The affidavit is required to provide specific information, including:

  1. Statements sufficient for the Court to find that all of the requirements listed above have been meet;
  2. The family history of the decedent with enough specificity that the Court can determine all of the decedent’s heir. Generally, this can include marital status, children, and siblings;
  3. A listing of the assets of the decedent, as well as the current liabilities, indicating which assets are exempt;
  4. The names and addresses of all of the decedent’s heirs, with their applicable shares of the estate indicated.

The affidavit must be sworn to by two disinterested witnesses, as well as each of the heirs or their applicable guardians. A disinterested witness is one that does not benefit from the estate.

It is important to note that a Small Estate Affidavit cannot be used to transfer real property other than the homestead. Other methods, however, may be available to transfer such property.

In sum, a Small Estate Affidavit may be useful for some estates that need to transfer some assets to the heirs, but do not otherwise need to administer an estate.

Thank you for your interest in these articles. Please remember that these articles are designed to provide general legal information and may not apply to specific legal situations. Legal matters can be complicated by issues outside of the scope of our articles. Publishing these articles does not constitute legal advice on the part of Davis McCown, Attorney at Law. Neither review of any article, nor use of the information provided, constitutes an attorney/client relationship. It is recommended that all estate planning documents and decisions be discussed with a qualified attorney.