Small Estate Affidavit

Texas Small Estate Affidavit

One of the Texas Intestate Probate Procedures

When someone dies without a will (aka "intestate"), a Texas probate lawyer has multiple intestate probate procedures available to him/her. When a decedent dies intestate, we look to the Texas Estates Code to determine the decedent's heirs. The small estate affidavit (and affidavit of heirship) essentially outlines the decedent's family history so that the decedent's heirs can be determined (i.e. if the decedent was married and never had children, the sole heir would be the surviving spouse).

A Texas small estate affidavit is similar to an affidavit of heirship, however, the small estate affidavit is filed with (and aproved by) a Texas probate court. If done properly, the probate court will sign an order approving the small estate affidavit and direct that all property owned by the decedent be transferred pursuant to the affidavit.

When is the small estate affidavit viable?

The small estate affidavit is only available for small estates (i.e. estates having less than $50,000 in assets, not including the homestead and other exempt assets). A small estate affidavit works well when the heirs only need to transfer assets such as bank accounts and the decedent's homestead. The small estate affidavit will NOT transfer title to real estate unless the real estate was the decedent's and the heir's homestead. If the decedent owned real estate that was not his/her homestead, the affidavit of heirship or determination of heirship proceeding will likely be the better alternative.

The small estate process is not viable when the estate has a necessity for administration.

Advantages of the Small Estate Affidavit

The advantage of using a Texas small estate affidavit over more traditional probate options lies in the cost; it is considerably less expensive than a judicial determination of heirship proceeding as there is no formal administration and no need for the court to appoint an additional attorney ad litem to represent the decedent's unknown heirs.

Flat Fee Representation

Under most circumstances, we charge a flat fee for the small estate affidavit. We recommend that you contact us to discuss your situation. We'll let you know if the small estate affidavit is proper.

Quick Facts

  • Small Estate: The value of the estate assets must not exceed $50,000, not including the homestead and exempt property.
  • Signatories: The 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 when the decedent left a valid will.
  • Real Estate: The Affidavit and Order do 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.
  • 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.
  • Administration: The small estate affidavit will not result in the appointment of an administrator to administer the estate. As such, it may not be viable for all small estates.

Contact Us

Compliance with the Texas estates code can be difficult for non-lawyers. If you need assistance with a Texas Small Estate Affidavit, contact our Dallas probate lawyer today.