The Small Estate Affidavit

Texas Small Estate Affidavit

When someone who owns very little dies without a will, going through the probate process may not be cost-effective. In Texas, heirs to a small estate have the option to transfer ownership of property using a small estate affidavit instead of probate.

When is a Small Estate Affidavit Used?

You can use a small estate affidavit to transfer property without the need for a full probate if:

1. The decedent did not leave a valid will.
2. The total assets of the estate are less than $75,000 (not including the homestead and exempt property, as described below).
3. There are no debts that the decedent owed that will go unpaid.
4. There are no minors who inherit property.
5. There is no need for a full probate, such as a family dispute or other litigation matter that must be handled.

Who Can You Transfer Property to Using a Small Estate Affidavit?

You can use the small estate affidavit to transfer property to the decedent’s heirs. The decedent’s heirs are those persons who are entitled to inherit property under Texas law. This usually includes the surviving spouse, children, etc.

What Can You Transfer with a Small Estate Affidavit?

The general rule is that you can transfer any property owned by the decedent. This includes real and personal property.

There are some limitations on real property. You can only transfer the title to real property that qualifies as a homestead. The term “homestead” refers to the residence owned by the person who passed away.

The homestead may include:

• Separate or stand-alone structures
• Condominiums
• Manufactured or mobile homes
• Up to 20 acres of land for land owned and used for residential purposes

The homestead can also be in leased land, but the deceased should own the structure.

The homestead can only be transferred by a small estate affidavit if it passes to the surviving spouse or minor children.

You cannot transfer ownership of a property that does not qualify as a homestead with a small estate affidavit. So, a small estate affidavit cannot be used for a decedent who owned rental properties.

What Assets are Exempt for a Small Estate?

The Texas Estates Code and Texas Property Code set out certain minimum assets that the surviving spouse and/or minor children are entitled to. These assets include:

1. The homestead;
2. Properties for the use and benefit of the surviving spouse, minor children, unmarried adult children living with the deceased, or an incapacitated adult child are exempt. Exempt properties should not exceed $100,000 for a family or $50,000 for a single adult. These properties include:

• Provisions for consumption;
• Food on hand for consumption;

• Certain livestock:
  1. Two (2) horses, mules or donkeys with a saddle, blanket, and bridle for each
  2. Twelve (12) heads of cattle
  3. Sixty (60) heads of other livestock
  4. One hundred and twenty (120) fowl;

• Household pets;
• Furnishings family heirlooms;
• Clothes;
• Two (2) firearms;
• Farming or ranching vehicles and implements;
• Tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession;
• Jewelry not to exceed 25% of the prescribed aggregate limit;
• Athletic and sporting equipment, including bicycles;

• Two-wheeled, three-wheeled, or four-wheeled motor vehicles for:
  1. Each family member of a family or
  2. A single adult who holds a driver’s license or
  3. A single adult relying on another person to operate the vehicle;

• Present value of life insurance;
• Retirement plans including the right to assets held in or to receive payments whether vested or not, under any stock bonus, pension, profit-sharing, or similar plans, including retirement plans for self-employed individuals;
• Traditional IRS and Roth IRAs

These assets are not counted in the $75,000 limitation for the small estate affidavit.

Other assets, like an ordinary bank account, are not exempt. So, these assets count towards the aggregate limit of $75,000.

How to File a Small Estate Affidavit?

You need to file your sworn small estate affidavit along with the clerk of the court. The affidavit should include:

• Sworn statement of two (2) disinterested witnesses;
• Signature of all the estate’s heirs with a legal capacity.
  • If the heir is a minor, then the natural guardian or next of kin should sign.
  • In the case of incapacitated heirs, the guardian needs to sign.

Your affidavit should also include the following information:Your affidavit should also include the following information:

Your affidavit should also include the following information:

1. List of all the assets and liabilities of the estate, exempt
2. Names and addresses of the distributees
3. Relevant family history to identify the heirs and their share of the estate based on the rules of intestate succession in Texas

You need to file the affidavit with the county clerk.

What Happens After You File the Affidavit?

The court will review the affidavit and approve the request if it complies with the statutory requirements. The court may request a hearing on the affidavit. Practices vary from one county to another.

Upon approval, the county clerk will record the affidavit as an official public. In some counties, this occurs automatically, but in others, you may have to file a certified copy in the deed records for any county in which the decedent owned property. This step may be necessary to transfer real estate located in that county.

You need a certified copy of the affidavit to prove your right as the heir.

While filing a small estate affidavit can be less complicated than a full probate, you still may need to hire an attorney to prepare and file it for you. Many courts will not let you file the affidavit without an attorney if there are multiple heirs, etc.

An experienced probate attorney can help you identify whether you are eligible for a small estate affidavit, maximize your exemptions, and assist with getting the court to approve the small estate affidavit.