Alternatives to Probate-The Small Estate Affidavit

A Small Estate Affidavit is used to collect a small amount of money owed to the estate, including a small amount of money in a bank account. A Small Estate Affidavit may also be used to transfer title to real property which still qualifies as a homestead upon the Death of the decedent rather than going through the probate process. In order for the court to approve such an Affidavit, the following requirements must be met:

  1. The decedent must have died without a will; and
  2. The assets of the estate, exclusive of homestead* and exempt property, must exceed the known liabilities of said estate, exclusive of liabilities secured by homestead and exempt property; and
  3. No Application for a personal representative may be pending or have been granted; and
  4. Decedent must not have applied for and received Medicaid benefits, or if Decedent did, must have a Medicaid Estate Recovery Program form stating Medicaid is not pursing recovery from the Estate; and
  5. Thirty days must have elapsed since the death of the decedent; and
  6. The value of the entire assets of the estate, not including homestead*, must not exceed $50,000.

A Small Estate Affidavit lists all of Decedent’s heirs and the assets of the estate. The Affidavit is then signed before a notary public by all of the heirs of the estate and two disinterested witnesses. The Affidavit is then filed with the court. The Probate Court will then review and approve or deny the affidavit. If approved, the Court will issue an Order Approving Small Estate Affidavit. No administrator is appointed and no administration is opened. The distributes must provide a copy of the affidavit to anyone who has custody or possession of property or is a creditor of the property. *A “homestead” means only a homestead or other exempt property which would be eligible to be set aside under Texas Estates Code 353.051 if decedent’s estate was being administered. Many courts have interpreted that “homestead” under the small estate affidavit means the homestead to surviving spouse and/or minor children.

Attorney: James H. Horton

Jim has over 36 years of legal experience, and focuses his practice on helping clients throughout Denton, Tarrant, Dallas, Wise, Collin, and Cooke Counties of Texas in criminal defense and family law matters, as well as personal Injury, wrongful death, and estate planning and probate. Jim is a Specialist in Criminal Law, as certified by the Texas Board of Legal Specialization, and has tried more than 200 jury trials and more than 400 bench trials, experience that has earned him a reputation throughout North Texas as an effective trial lawyers. In recognition of his work, Jim was selected for inclusion of both the 2009 and 2010 editions of Super Lawyers Magazine, a Thomson Reuters service.