SMALL ESTATE AFFIDAVIT
A family member passing without a will can be problematical to pass assets to heirs. In certain instances, a Small Estates Affidavit can be helpful.
Where a person dies without a will, the heirs to receive the property are those persons set out in the Texas Intestacy Law, Texas Estates Code Chapter 201. See my December 2, 2020 blog “Dying Without a Will in Texas” that outlines the Texas intestate protocol. The Texas Intestacy Law only states who gets the deceased’s property, it does not automatically transfer the property. In order for title to property to legally pass, there must be additional action taken by the heirs, typically filing an application and obtaining a court order.
If the only real estate of the deceased is the family homestead, total assets exceed total known debts and assets are no more than $75,000, a Small Estates Affidavit is an effective tool to pass property to heirs where the deceased did not have a will. This process is quicker and a fraction of the cost of a full probate procedure.
A deceased’s ‘probate estate’ is different from the individual’s gross assets and debts. Any accounts or insurance policies that have a beneficiary listed, or property conveyed by a transfer on death deed, are not part of the deceased’s probate estate. The value of the homestead and exempt property is not counted as part of the probate assets. Debt secured by a mortgage on a homestead, or debts secured by exempt property (example, financing on a car) are not counted as part of the probate estate.
The Small Estate Affidavit includes a description of the assets and debts of the probate estate and a section setting forth the family history and heirs of the deceased. It is filed in the county where the deceased lived and submitted to a judge for approval. Once approved by the court and filed with the county records, the Small Estate Affidavit acts as a conveyance of the real and personal property to the heirs designated by the Texas Intestacy Law.
While it is possible for a surviving heir, on his or her own, to file the Small Estate Affidavit, the qualifying criteria and filling out the form properly can be challenging. It is advisable to consult an attorney to complete this process. If you have a family member who has died without leaving a will, and you have questions about your alternatives, contact the Law Office of Elliott Klein for a consultation.