Understanding Small Estate Affidavits and How They Are Used in the Texas Courts

When we think about a loved one dying, we’re often focused on the hole they will leave behind in our lives and how much we will grieve for them. However, there are also logistics with the estate that will need to be handled soon after a person’s death. This includes getting the estate through probate. Traditionally, this requires filing the will and having the executor settle the estate and ensure the beneficiaries get their inheritances, and that can be a long process. However, Texas has a process that allows smaller estates to go through a simplified and faster probate process by using a small estate affidavit.

What Is a Small Estate Affidavit?

To be eligible for a small estate affidavit, an estate must be valued at $75,000 or less. However, there are also other requirements that must be met. 

  • The person must have died without a will
  • No one has been appointed by the courts as a personal representative, and there are no current petitions to be appointed pending
  • The estate’s assets are worth more than its debts (some exceptions to what can be counted as an asset and debt apply)
  • All of the person’s inheriting heirs are willing and able to sign a small estate affidavit
  • There were no real estate holdings, or the only real estate was a homestead property that will be inherited by either the deceased’s spouse or minor children also currently occupying the property

In general, assets that are exempt from being valued as part of the estate include a homestead, personal property valued up to $50,000 for a single person or $100,000 for someone with a spouse or children, IRA accounts, pensions, and insurance benefits. Personal property includes things like furniture, tools, books, clothes, and pets.

What Are the Benefits of Using a Small Estate Affidavit?

The main benefit of using a small estate affidavit is that it speeds up the process of getting the estate through probate. This simplified version means that the probate case can be settled more quickly, which translates into the beneficiaries receiving their inheritances more quickly as well. Using a small estate affidavit is also generally less expensive than going through the full probate process, which can help preserve more of the estate and assets for the beneficiaries.

While the small estate affidavit is designed to make it easier for the beneficiaries to get their inheritances, it’s still a legal process that can be complex. Working with an estate attorney as you navigate this time can ensure that everything is handled correctly and that you’re able to make the process as efficient as possible.

How to File a Small Estate Affidavit?

The first step in filing a small estate affidavit is meeting with an estate attorney. They can help you understand if the estate qualifies for this simplified process, including what assets are exempt from the valuation. An attorney can also help you with gathering all of the documentation and filing the affidavit in the probate court.

Before you can file a small estate affidavit, you will need to have the death certificate and an inventory of all of the assets and debts connected to the estate. The next step is to ensure that the estate meets all of the qualifications, including that it has been at least 30 days since the person died and that there was no will in place at the time of the person’s death. The affidavit is filed in the probate court for the county where the deceased lived. The court will review the affidavit and determine if it meets all of the requirements and includes all of the necessary information. If the affidavit is approved, the assets are released to the beneficiaries after the estate is settled.

What Happens When Someone Dies Without a Will?

When someone has a last will and testament, this generally names an executor for the estate and outlines the beneficiaries. However, one of the requirements to use a small estate affidavit is that the person didn’t have a will. This means that who is a beneficiary depends on the Texas intestate succession laws. In most cases, the deceased’s spouse and children are the beneficiaries. If the person leaves behind both a spouse and children, the estate is divided between them. However, if someone dies without a spouse or children, the intestate succession laws state that the estate passes to the person’s parents, siblings, nieces and nephews, or other next of kin.

It’s not uncommon for there to be disagreements about who should inherit the estate or a specific asset in these cases where there isn’t a will to communicate the deceased’s wishes. In this situation, it’s a good idea to consult with an estate attorney who can help you determine if you have a claim to the estate.

What If the Estate Is Valued Above the Small Estate Affidavit Limit?

If an estate is valued above $75,000, it should go through the traditional probate process. If there is a will, the executor of the estate will file the will in the probate court and start the process of inventorying the assets and debts and settling the estate. If the Decedent passed away without a will, a court may appoint a person to serve as an administrator to handle collecting the property, paying debts, and distributing to the heirs at law.

If your loved one has passed and you’re not sure what your next steps should be, call the Hatchett Law Firm at 281-771-0560. We can help you determine what probate options you have and how to start the process.