Avoid Probate in Texas With the Small Estate Affidavit

Not everyone has a sizable estate or a will that sets out how assets will be distributed after they die. The probate process can be costly and time-consuming for family members after a loved one dies. If the deceased family member had few assets, going through probate can eat up what little estate is left. Fortunately, courts in Texas provide an alternative for these situations with a small estate affidavit.

What is a Small Estate Affidavit?

For these scenarios in which family members die with more modest estates, laws have been enacted to deal with them outside the usual probate process. Smaller estates can be administered with far less cost and time using a small estate affidavit. A small estate affidavit, or SEA, is a document that can be used to transfer assets to heirs quickly and efficiently without the cost and time of probate, providing certain conditions are met. You can watch the video below for an overview of the Small Estate Affidavit process.

What Happens When Someone Dies Without a Will in Texas?

When someone dies without a will in the state of Texas, it is said that the deceased party died “intestate.” Under probate laws, there is a succession of who gets assets in the estate when this happens and a statutory formula that is used to determine who gets what. During the probate process, the court locates heirs and determines how the assets will be divided. Unfortunately, this can be time-consuming and eat up what little assets are in the estate. This is when a small estate affidavit may be a good alternative. Utilizing a SEA can be a more cost-effective way to administer the deceased party’s estate if certain criteria can be met. The qualifications for an SEA are:

• The deceased individual died without having a will.
• Nobody has applied to be a personal representative of the estate.
• There is less than $75,000 in assets in the estate. This does not include homestead property or other exempt property, such as a vehicle, furniture, or other property intended for the spouse, any minor children, or any adult children still living at home. Money in bank accounts is not considered exempt.
• The assets are worth more than the estate’s debts, not including mortgages and or other debts secured by exempted property.
• All heirs can be located, and they are willing to sign the small estate affidavit.

Because small estate affidavits do not transfer title to real estate other than homestead property, it cannot be used if the deceased party owned other real properties.  

What is the Difference Between the Probate Estate and the Gross Estate When it Comes to Small Estate Affidavits?

Whether the assets are part of the probate estate or gross estate has a bearing on whether it has to be considered under the $75,000 valuation limitation. This limit is only on the value of the probate estate. The probate estate only considers those things that are titled in the decedent’s name, excluding homestead and exempt property. But it will not include assets that were placed in a trust (now owned by the trust) or other assets that have transferred on death designations. Life insurance policies or retirement assets that have named beneficiaries may not be included in the $75,000 limit. Consequently, the estate may still qualify under small estate administration.

Who is Eligible to File a Small Estate Affidavit?

The only parties eligible to file a small estate affidavit in Texas are those who would normally inherit under intestate succession laws. These would include a spouse, or, if the decedent was not married, an adult child. If the only heir is a minor child, a guardian or next of kin can file the affidavit on the minor child’s behalf. If the deceased party was unmarried and there were no children, another close family relative may file.

What Happens if You Don’t Know the Value of the Deceased Party’s Assets?

Many heirs have no idea how much their loved one’s estate is worth or how much money they have in banking accounts. Historically, this required that they had to file a suit in court, which was costly. However, we now have laws allowing the court to learn how much is left in a deceased party’s accounts at financial institutions.This enables the person handling the estate to understand its value and decide if a small estate affidavit is an option.

How Do You File a Small Estate Affidavit in Texas?

How to file a small estate affidavit depends on your county. Although the information required in a Small Estate Affidavit is set by the Texas Estates Code, many counties will require the information to be presented in a particular way and have a form that you are required to use. For example:

• Here is the Small Estate Affidavit form required by Bexar County
• Here is the Small Estate Affidavit form required by Travis County
• there may be others, so please check your county’s website (specifically, the court or the probate court)

While you are filling out the form Small Estate Affidavit, it is important to provide supporting documentation and follow the instructions for how to complete the Small Estate Affidavit very closely. Additionally, you may notice that there is a section on the small estate affidavit directing you to determine the shares of different types of property that will pass to each of the heirs (for example, share of separate real property, share of separate personal property, share of community real property, share of community personal property, etc.) If you’re confused by this, don’t despair. Here are two very helpful resources that you may want to review:

• Travis County checklist for Small Estate Affidavit
• Bexar County checklist for Small Estate Affidavit

In particular, you may find these charts helpful:

Getting Help After the Death of a Loved One

Although it’s not mandatory to have the assistance of a Texas estate lawyer when filing a small estate affidavit, probate laws can be complicated and highly nuanced. Most individuals will not know which assets are considered probate assets and which are not.  There may be questions as to eligibility, and filing the required paperwork can be confusing. If you have questions about whether a small estate affidavit may be an option for your loved one’s estate in Bexar County and/or in San Antonio, contact the Law Offices of Ryan Reiffert, PLLC to schedule an appointment. We would be happy to answer your questions and discuss your needs.