Wednesday, June 27, 2012

Probating an Estate Without Administration in Texas: The Small Estate Affidavit

What if your relative died without a will, but her assets are not very complicated, and you’d rather not spend a lot of money or time going through probate?

In Texas, you may be able to use a special form of probate. In order to qualify, the following must be true:

- At least 30 days have elapsed since the date of death;
- The deceased died without a will;
- The total gross value of the deceased’s property/assets is $50,000 or less (not including the deceased’s homestead or certain exempt property); and
- The only real property owned by the deceased was her homestead.

In this context, “exempt property” typically means personal property worth $30,000 or less, so the deceased’s separate property and one-half share of any community property must not exceed the $50,000 limit. Several other conditions apply, but if the foregoing is true, you may be able to avoid formal probate administration through the procedure known as a Small Estate Affidavit.

The affidavit must comply with Section 137 of the Texas Probate Code.  The probate court will review the affidavit and, if it is approved, will enter an Order – usually without a hearing – approving the Small Estate Affidavit, which is then recorded as an official public record. Once approved and records, the Small Estate Affidavit serves to transfer ownership of the deceased’s assets to the persons identified as distributes in the affidavit. 

Like the Texas Muniment of Title procedure, the court does not appoint anyone to act as an executor or other representative of the deceased’s estate.  However, because the court’s order lists specific distributees who will receive the deceased’s property, most stock brokerage firms, banks, and similar companies appear to recognize the validity of this more simplified probate procedure. 

By: Cynthia W. Veidt