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

Simpler Probate for Certain Estates in Texas

What can you do to avoid expensive probate costs when there are very few assets or very little money in the deceased person’s estate? In Texas, there are a variety of methods to help these “small estates.”

The Texas Probate Code recognizes an expedited probate process called “Small Estate Administration,” when the deceased died without a Will, a condition lawyers call “intestate.” This procedure is available when the total value of the deceased’s assets, excluding the value of his or her residence and other exempt property, does not exceed $50,000.00. (For a discussion of exempt and non-exempt property under Texas law, please see Cary & Lippincott’s Collection Blog – http://carylippincott.blogspot.com/). For most individuals, the residence is their most valuable asset. By taking the residence (and a few other fairly common items, such as a motor vehicle, IRAs, and 401(k)s out of these calculations, many persons in the middle income class bracket will qualify to probate their estate as a small estate affidavit. However, a small estate affidavit may not be the best method for transferring title of certain types of assets from the deceased to his or her heirs. These assets typically include items such as stocks in publicly-traded companies, brokerage accounts, and partnership interests. You should always contact the person or entity acting as transfer agent for such assets to determine whether they will accept a small estate affidavit before initiating this type of probate procedure.

Additionally, if the deceased dies with a Will, but owned few assets, the Texas Probate Code recognizes a procedure known as the “Muniment of Title.” In essence, the Will is filed in connection with the affidavits of persons with knowledge of the deceased’s financial affairs and family relationships. Once approved by the Probate Court, the Will itself is filed as a public record and acts as the instrument authorizing the transfer of title from the deceased to his or her beneficiaries.

Finally, Texas permits a procedure known as the “Affidavit of Heirship.” This process does not involve filing anything in the Probate Court, but merely filing certain affidavits in the public records of any counties in which the deceased owned property. Extreme caution should be used when considering this process, however, because it does not pass title to the deceased’s property “free and clear” of alleged debts or encumbrances, will likely not be recognized as a valid transfer of title for most assets by entities such as banks and title companies, and may lead to future problems which actually increase the costs of probate or other methods to obtain clear title. Always consult with a probate lawyer before considering the use of an Affidavit of Heirship.