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Small Estate Affidavit: How To Probate A Small Estate Without A Will

Small Estate Affidavit: How To Probate A Small Estate Without A Will

Losing a loved one is one of the hardest things we go through in our lives but losing a loved one who didn’t make the proper preparations before they passed can make the grieving process significantly more difficult. When a person passes away without a valid will this is called “intestate,” and the law will decide who is entitled to what property from the estate and in what percentage.

This can be a long and costly process, but Chapter 205 of the Texas Estates Code provides for something called a “small estate affidavit,” which is an affordable way to probate an intestate estate in Texas as long as certain important requirements are met, such as:

  1. Your loved one passed away without a valid will;
  2. The value of the estate does not exceed $75,000, not including homestead and exempt property;
  3. The assets of the estate must be worth more than the debts of the estate.
    1. Note: for this calculation do not consider any mortgages or debts secured by exempt property. Furthermore, do not consider homestead and exempt property as assets.
  4. All heirs of the estate can be tracked down and are willing to sign the small estate affidavit.
  5. A personal representative has not been appointed by a court or no pending application for appointment of a personal representative exists.

As mentioned above, your loved one’s estate cannot exceed $75,000 if you are filing a small estate affidavit, but this does not include the value of the homestead or any exempt property. As most already know, a homestead is considered to be the place lived in and owned by your loved one as an individual. The homestead could be: (1) a stand-alone structure, even if it exists on leased land; (2) a condo; or (3) a manufactured home.

Although most people understand the concept of a homestead, wrapping your mind around what property is considered exempt and what isn’t can be a challenge. Exempt property includes the homestead, if being used for the benefit of the surviving spouse and any minor children; pension benefits, IRAs, and insurance benefits; and the following categories of property for the use and benefit of your loved one’s surviving spouse, minor children, unmarried adult children still living at home, and adult children who are considered to be incapacitated, not to exceed $100,000 for a family or $50,000 for a single adult:

  1. Home furnishings, which can include family heirlooms;
  2. Provisions for consumption;
  3. Farming or ranching vehicles and implements;
  4. Tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession;
  5. Clothes;
  6. Limited amounts of jewelry;
  7. Two firearms;
  8. Athletic and sporting equipment, including bicycles;
  9. Two-wheeled, three-wheeled, or four-wheeled motor vehicle for each member of a family or a single adult who holds a driver’s license or who does not hold a driver’s license but relies on another person to operate the vehicle for the benefit of the non-licensed person;
  10. Certain livestock and food on hand for the livestock’s consumption;
  11. Household pets.

If your loved one’s estate meets these requirements, then you should be able to utilize a small estate affidavit to transfer the estate assets without the appointment of a personal representative by the court. A judge will still need to review the affidavit and approve it, but that is pretty much the limit of the court’s involvement. One thing to keep in mind is while this may appear to be simple and be something you could do on your own, it can be a complex process and it’s always advisable to hire an attorney to assist you.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. 

Carl attended the University of North Texas from 2008 to 2011, where he earned his Bachelor’s degree in History (both majoring and minoring in History). Upon graduating, he worked for TRCA, Inc. in Denton, Texas as a Sr. Account Executive, where he was personally mentored by the company’s CEO. It was in this capacity that...

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