Texas Small Estate Affidavit

A Small Estate Affidavit is similar to an affidavit of heirship. However, the Small Estate Affidavit is filed with the probate court in the county of the decedent’s residence or any county in which he/she owned real estate. Section 137 of the Texas Probate Code governs the Small Estate Affidavit procedure.

The completed Small Estate Affidavit is filed with the Probate Court. If done properly, the Probate Court should enter an Order approving the Small Estate Affidavit and directing that all property owned by the decedent be transferred pursuant to the Affidavit.

The Small Estate Affidavit is only available for estates having less than $50,000 in assets, exclusive of the homestead and exempt property. Other than the decedent’s homestead, the Small Estate Affidavit will not transfer title to real property. If your are trying to tranfer title to non-homestead real estate, an affidavit of heirship or a judicial determination of heirship proceeding will likely be the better alternative.

A Small Estate Affidavit is great for some assets, such as bank accounts, titles to automobiles, savings bonds and the homestead. You may face resistance when using a small estate affidavit to transfer title to publicly traded stocks and bonds, partnership accounts or brokerage accounts because most out-of-state transfer agents are unfamiliar with the Texas Small Estate Affidavit procedure. Our office can help educate and persuade these out-of-state agents when necessary.

The advantage of using a Texas Small Estate Affidavit over more traditional probate options lies in the cost; the Small Estate Affidavit procedure is considerably less expensive than a judicial determination of heirship proceeding. A hearing may be required to get the order approving the small estate affidavit, but a formal administration is not required after the hearing.

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The complexity of the Probate Code poses many pitfalls for non-lawyers attempting to comply with the Small Estate Affidavit requirements. If you need assistance with the Texas Small Estate Affidavit, contact our dallas probate lawyer today.

Quick Facts

Signatories: The Texas Small Estate Affidavit must be signed by ALL of the decedent’s heirs as well as two disinterested witnesses.

Intestacy: A Small Estate Affidavit cannot be used where decedent left a will.

Real Estate: A Small Estate Affidavit does not transfer title to real estate unless the real estate was the decedent's homestead and the heir was homesteading with decedent on the date of death.

Small Estate: The value of the estate assets must not exceed $50,000, not including the homestead and exempt property.

Solvency: The estate assets (not including the homestead and exempt property) must exceed the known liabilities, not including liabilities secured by homestead and exempt property.

Heirs: The Affidavit must state the decedent’s marital and family history outlining who inherits decedent’s property and the shares of those heirs under Texas law.