Texas allows the heir of a person who has died without a will to avoid probate by using a summary administration process with a small estate affidavit. A small estate affidavit can allow an heir to claim bank accounts and other estate assets much faster and at far less cost than through a probate. In Texas, this process can only be used if the estate is worth less than $75,000, not counting the deceased person’s primary residence, and it can’t be used to transfer ownership of real estate except for a primary residence. Talk to a financial advisor to help you plan your estate.
Small Estate Affidavit Basics
A small estate affidavit is a sworn legal document a person can use to assert a claim to assets from the estate of someone who has died. If the affidavit is properly completed and the estate is eligible, a bank or another holder of an asset belonging to the estate must turn over the asset when presented with the affidavit.
One limitation in Texas is that real estate, with the exception of the deceased person’s primary residence or homestead, can’t be transferred with a small estate affidavit. The principal residence is the only real estate from the estate that can be transferred using the small estate affidavit. Also, if any real estate other than the homestead is included in the estate, the small estate affidavit can’t be used to transfer other assets as well.
Using this summary administration process avoids formal probate, which can take months or years and require paying fees that significantly reduce the value of the estate. However, only some Texan estates can go this route. Here are the state’s criteria for using the small estate affidavit:
- The deceased person died without leaving a will.
- The estate can’t be valued at more than $75,000, not including the deceased’s homestead or exempt assets.
- At least 30 days have passed since the death.
- No petition has been filed to appoint a personal representative for the estate.
When valuing the estate, the total does not include the deceased’s homestead or any exempt property. Exempt property includes certain types of property like vehicles, furnishings, clothing and jewelry, that is for the use of the surviving spouse and minor children and other dependents. Pension and IRA benefits are also exempt property and not included in the estate’s value.
In Texas, the small estate affidavit must be filed with the court and the court must approve the affidavit. After the court has approved the affidavit, it can be presented to a bank, organization or person, which then has to release the assets to the person with the affidavit.
Texas lays out the requirements of a small estate affidavit on its legislative website. A ready-made template for a Texas small estate affidavit can be downloaded here. Most people can draft and complete the affidavit without help from an attorney. The signatures on the form do have to be notarized so the services of a notary are necessary.
What’s Included in a Small Estate Affidavit?
Texas law says a small estate affidavit has to:
- State that the value of the assets in the estate is less than $75,000, not including the homestead and exempt property.
- Be sworn to by two disinterested witnesses as well as every person who has a right to a distribution of assets from the estate, which typically includes the surviving spouse, children, parents, siblings and other relatives.
- List all the estate’s assets and liabilities.
- Give the names and addresses of everyone entitled to a distribution of assets from the estate.
- A description of the family history or other facts that show each person’s right to a distribution of assets from the estate.
Pros of a Small Estate Affidavit
Affidavits for collection of personal property offer notable benefits, including:
- It takes less time compared to formal probate.
- Costs are much lower than probate.
A small estate affidavit can be used when a person dies without a will.
Cons of Small Estate Affidavit
Some limits and drawbacks include:
- Estates must be smaller than $75,000, not including homestead and exempt property.
- This process can’t be used to transfer real estate other than a homestead or at all if an estate includes real estate other than the homestead.
- All the possible heirs and beneficiaries have to be contacted, agree to the use of the affidavit and provide notarized signatures.
Bottom Line
In Texas, a small estate affidavit can save time and money when transferring assets from the estate of someone who died. The affidavits can only be used when the estate is valued at less than $75,000. Heirs can gain control of assets such as bank accounts and stocks by presenting a properly completed small estate affidavit to a financial institution or other asset holder. Most people can complete one of these affidavits without an attorney and get rapid access to assets in a small estate.
Estate Planning Tips
- A financial advisor can help you with estate planning and other financial matters. SmartAsset’s free tool matches you with up to three financial advisors who serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
- Many Texas estates can’t go through summary administration using a small estate affidavit. Here’s what you should know about inheritance laws in Texas.
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