If a family member has died intestate (without a will), what are the next steps to transferring the property of the decedent’s estate? Probate can be overwhelming and an expensive process. Currently, any executor, administrator, or guardian in Harris County must be represented by counsel. What options are there if the estate is small and only consists of property that amounts to $75,000 or less? Probate may not be required in this case if the transfer of property qualifies for a Small Estate Affidavit.
Does the estate qualify for a Small Estate Affidavit?
The Texas Estates Code Chapter 205 covers what is required in order to qualify for a Small Estate Affidavit in detail. Some important qualifications include:
· The decedent must have died intestate.
· It has been over thirty days since the decedent’s death.
· The decedent left no more than $75,000 in property. (This does not include the decedent’s homestead and exempt property).
· The decedent’s assets must be worth more than the debts.
· All the distributees must be able and willing to sign the affidavit along with two disinterested witnesses. The witnesses must sign in front of a notary.
· There is no appointment of a personal representative.
· The title of the decedent’s homestead can only be transferred to the surviving spouse or minor child who were homesteading with the decedent when the decedent died.
· The affidavit cannot be used to transfer title to real estate that was not considered the decedent’s homestead.
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Cons.
Even if the Small Estate Affidavit seems like a perfect fit for your situation, there are some cons you should keep in mind. Some banks, especially those outside of Texas, may not accept a Small Estate Affidavit. They may want to see Letters Testamentary or Letters of Administration before they will assist as they are not familiar with Texas laws.
The court also does not have to accept the Small Estate Affidavit, even if it meets all the statutory requirements. Different courts also have specific requirements regarding the Small Estate Affidavit so you will want to review your courts processes before deciding whether this is the right step forward for you. While you may save money by not hiring an attorney to complete this form, the filing fee can be costly and, as stated above, the court does not have to approve a Small Estate Affidavit even if it meets all the statutory requirements.
Approval.
Once this Small Estate Affidavit is approved by the court (usually through an ‘Order Approving Small-Estate Affidavit’), a certified copy of the affidavit can then be used to collect estate assets and transfer title to the homestead to the decedent’s spouse or minor child. These assets can also be used to pay any debts remaining from the estate.
If the Small Estate Affidavit seems like the right fit for your needs, you can access a fill-in-the-blank copy here, provided by Harris County Probate Court 1. This packet also includes further instructions on how to fill out each section of the form. If you are outside of Harris County, you can access a list of county-specific Small Estate Affidavit forms (if they are available) and more information about Small Estate Affidavits from TexasLawHelp.org.
If you are unsure whether a decedent’s estate qualifies for a Small Estate Affidavit or if you have any questions on how to fill out the form, please seek advice from an attorney.
Further Resources:
What is a homestead?
Small Estate Affidavit Toolkit
Small Estate Affidavit not the right fit? Here are other ways property can be transferred after death.