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

Probating an Estate Without Administration in Texas: The Muniment of Title Procedure

What if your relative in Texas died with a will, but her assets are not very complicated, her will is clear about who should receive each asset, 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, simplified form of probate. In order to qualify, the following must be true:

The deceased had a valid written will;

That will had not been revoked;

The only debts owed by the deceased are secured by liens on real estate; and

Four years have not passed since the date of death.

A few other conditions may apply, but if the foregoing is true, you may be able to seek an order from the Texas probate court (following a brief hearing) admitting the will to probate as a “muniment of title.” No one will be appointed to act as the executor or other representative of the deceased’s estate. Instead, the will itself becomes an official public record of Texas that acts as the required instrument to transfer title and ownership from the deceased to the persons named in her will.

You should be cautious, however, when attempting to use this simplified Texas procedure. Many stock brokerage firms, banks, life insurance companies and title companies in other states are often unfamiliar with the Texas muniment of title procedure, and they sometimes refuse to recognize this process as a valid method of transfer.

If your relative had investment/retirement accounts or similar assets that did not have valid beneficiary designations, you should check with the companies holding or managing these assets to determine whether they will accept an order probating the will as a muniment of title before attempting to use this procedure.

By: Austin Attorney Cynthia W. Veidt

When should I probate a will?

Generally, a will should be probated as soon as possible. In Texas, the law requires that a will be offered for probate within four years of the date of death. (Texas Probate Code § 73). Under limited circumstances, a will can be offered for probate if the person offering it is not at fault for failing to present it within the four year period.

Notices to Beneficiaries By Executors Under Texas Wills

When someone dies with a will (the “Decedent”) in the State of Texas, the representative of his estate (also called the “executor” or “administrator”) must give notice of the probate proceeding to every beneficiary under that will, which includes the following information:

• The name and address of the beneficiary to whom the notice is given;
• The Decedent's name;
• That the Decedent's will has been admitted to probate;
• That the beneficiary to whom the notice is given has been named as a beneficiary in the will;
• The estate representative's name and contact information; and
• Attach a copy of the will admitted to probate, as well as the court’s order admitting the will to probate.

A beneficiary is any “person, entity, state, governmental agency of the state, charitable organization, or trust entitled to receive real or personal property under the terms of a Decedent's will.”

The notice is required by Texas Probate Code § 128A. It must be sent by registered or certified mail, return receipt requested, no later than the 60th day after the order admitting the Decedent’s will to probate, unless: (a) the beneficiary has signed a “waiver” that acknowledges receipt of a copy of the Decedent’s will and specifically waives the right to receive notice under Section 128A; or (b) the beneficiary has entered an appearance in the probate action prior to the date of the order admitting the Decedent’s will to probate. However, most Texas courts will not require this statutory notice when there is only one beneficiary under the Decedent’s will and that beneficiary is also the estate’s representatives.

Notice under Section 128A is required in all proceedings related to a Decedent’s will, including actions admitting the will to probate only as a “muniment of title.”

The estate’s representative must also file an affidavit with the probate court no later than the 90th day after the Decedent’s will is admitted to probate which states that he or she complied with the provisions of Section 128A.