Understanding and Using the Small Estate Affidavit

Sometimes you or a family member can be left in a difficult position when a loved one died intestate (without leaving a will). Fortunately, in Texas, there is a convenient procedure to assist in the transfer of property called a “small estate affidavit. Although the small estate affidavit has its limits, it can be beneficial for a family or a surviving spouse wanting to simplify the process of transferring property or assets to avoid formal probate.

The small estate affidavit can be used to avoid formal probate by easing the transfer of real property and assets as long as the value does not exceed $75,000. Thankfully, this does exclude the homestead and other exempt property from this calculation. The exclusion makes this procedure more practical for the average family or person when their loved one has recently passed away.

Besides a limit on the value of the estate, you would have to wait 30 days from the date of death of the decedent to start the process. There also must not be a petition for the appointment of a personal representative. These are generally easy to verify, and after confirming these prerequisites, you or your family would be able to start creating the affidavit. An affidavit is a voluntary declaration of facts written down and sworn to. More simply stated, it is an official written statement you promise to be true. These are used every day in the legal world and are nothing to be intimidated by.

This affidavit has to include a comprehensive list of all the assets from the estate of the deceased and a list of all distributees and their addresses. The affidavit may also include any relevant family history that may detail how a distributee is entitled to heirship of some type. By being able to have these details, it becomes easier to explain why you or a loved one is entitled to part of the estate.

Finally, to make the affidavit valid for you or your loved one, two disinterested witnesses and each distributee of the estate with legal capacity needs to swear to it. This is to ensure the affidavit is valid and cannot be falsified. After the affidavit has been completed, a Judge will examine the affidavit and determine whether it complies with what the Texas Estate Code requires. If the judge approves the affidavit, it will be kept as a government record. The affidavit will then need to be distributed by the distributees to all people who have or owe some type of interest to the estate.

If you or your loved one are a distributee of an estate in Texas with a value of $75,000 or less, excluding the homestead and other exempt property, then the small estate affidavit may be the right option for you. To be sure, it is always recommended to consult an attorney and explain your particular circumstances. Losing a loved one can be challenging, and so can probate. Taking advantage of the small estate affidavit can be helpful in a complex situation.