What is the Texas Small Estate Affidavit and how can it help?
A small estate affidavit (“SEA”) is a sworn statement listing all of your loved one's heirs and all of their property. It can be used to transfer property if they did not leave a will or a substantial estate and is simpler than going through a full probate administration, being both cheaper and faster than the full probate process.
When can I use a small estate affidavit to probate an estate in Texas?
You may be able to use a SEAs to probate an estate in Texas if you meet all the requirements of Texas Estates Code Chapter 205. The important requirements include:
- The decedent did not leave a will;
- At least 30 days have passed since they died;
- They left less than $75,000 in property, not including homestead property and exempt property;
- The value of their estate's total nonexempt assets is higher than its total known debts, not including debt secured by the homestead and other exempt assets;
- The only real estate they owned was their homestead property, and it will be inherited only by someone living with them at the time they died. For example, a surviving spouse and minor child(ren) who lived on property with them;
- You can locate all the heirs and they will all sign, or authorize the signing of, the Small Estate Affidavit;
- No one has applied for an appointment as personal representative of their estate; and
- There is no other reason that a full administration is necessary.
Since, small estate affidavits don't typically transfer title to any real estate except the homestead, if your loved one owned other real estate besides the family home, this affidavit cannot be used. If they didn't own any other property, a small estate affidavit is an efficient and cost-effective way of settling a small estate.
Who can file a small estate affidavit?
To file a SEA, you must be someone who would inherit under state intestacy law, such as a spouse or child or, if the decedent was unmarried and had no children, another close relative. If the only heir is a minor, their guardian or next of kin can file the affidavit on their behalf.
Do I need to hire a lawyer?
No. As a matter of fact, you can access the Texas small estate affidavit form by clicking on the following link: texaslawhelp.org/sites/default/files/sm-estate-affidavit_form.pdf.
However, small estate affidavits must meet all of the statutory requirements to be approved so you should talk to a lawyer if you have any questions or if any of the following apply:
- If there's any question about whether you need an administration;
- If you have any questions about what property is exempt; or
- If your loved one did not have a fixed residence in the county where you want to file the SEA.
If you do decide to talk with an attorney, you can hire a lawyer to give you advice, review your forms, help you fill out your forms, help you prepare for the hearing, or all the above, while you handle only those parts of your case with which you are comfortable. If talking with a private attorney is too expensive, you may also be able to talk with a lawyer for free at a legal clinic, which in the DFW area is the Legal Aid of Northwest Texas.
What information is needed for a small estate affidavit?
Because a small estate affidavit is only used when someone dies without a will, it will need to list detailed information on the heirs and the property of your loved one. This includes the following information:
- Name and address of the decedent;
- Date of death;
- All of the estate's known assets and liabilities;
- Each heir's name and address; and
- Signatures from all heirs who have legal capacity and the guardian or next of kin of any incapacitated heirs or minors.
Once completed, the small estate affidavit should be filed with the probate court for the county in which your loved one lived at the time they passed away. The probate court will confirm that the affidavit complies with all legal requirements and once approved, the heirs can use a certified copy of the affidavit to collect estate assets or money owed to the estate.
Do I need to file anything else with the small estate affidavit?
You will need to file an affidavit of heirship with the small estate affidavit. The affidavit of heirship must be completed by a disinterested third party and must include the following:
- The names and addresses of all witnesses who can testify about the members of the family;
- Their relationships to the deceased;
- The decedent's date of death;
- Information about the decedent's marital history; and
- A family history that lists the heirs and the percentage of the estate that they inherit under the laws of Descent and Distribution, since there was no will.
Does it cost anything to file a small estate affidavit?
Generally, yes. There is a fee to file a small estate affidavit, but the fee varies depending on the county of filing. You can call the county clerk's office or district clerk's office in the county where the decedent lived at the time of death to learn what the fees are.
Depending on your income, you may qualify to have your court fees waived. To ask the court to waive the fee, fill out this form and file it with the court.
Where do I file a small estate affidavit?
A small estate affidavit is filed in the office of the clerk serving the probate court in the county where your loved one lived at the time of death. Depending on the county, the probate matters may be heard in a probate court, county court, or county court at law.
Will I have to go to court?
Sometimes. A hearing is not always required but you can contact the court where you file the SEA to learn if you will need to go to court for a hearing.
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