Small Estate Affidavit

What is a Small Estate Affidavit?

If the person who died (the "decedent") did not leave a Will or a Trust, currently there are four alternatives to a formal probate (a "dependent administration") of the decedent’s estate in Texas:

• a declaration of heirship; or
• a family settlement agreement, or an informal family agreement; or
• an affidavit of heirship, or an affidavit of facts; or
• a small estate affidavit.

The small estate affidavit is an alternative to formal probate of a small or large estate generally meeting all of these requirements:

1. the decedent died without leaving a Will or a Trust;
2. the value of the estate’s assets exceed the estate’s liabilities (generally excluding "exempt" assets, retirement plan assets, and the decedent’s homestead);
3. thirty days have passed since the death of the decedent;
4. the value of the entire estate (excluding any homestead and exempt property) does not exceed $50,000.00; and
5. there is no pending probate of the decedent’s estate.

The small estate affidavit must meet all of these requirements:

• it must be signed and sworn to by two disinterested witnesses [that is, they are not relatives or heirs of the decedent, nor will they receive any benefit from signing the document] (a) who are personally acquainted with the decedent, (b) who are familiar with the decedent’s family, and (c) who are generally aware of the decedent’s assets and the decedent’s debts;
• it must be signed and sworn to by all persons who are entitled to receive all or a portion of the decedent’s estate under applicable Texas law (the "distributees");
• it must list the addresses of all distributees;
• it must list the names of all distributees;
• it must describe facts conclusively establishing the family history of the decedent;
• it must list all of the known liabilities of the decedent’s estate (for example, debts and unpaid bills; and if the decedent applied for and received Medicaid benefits on or after March 1, 2005, the Texas Medicaid Estate Recovery Program ["MERP"] may have a claim against the estate to recover such benefits); and
• it must list all of the known assets of the decedent’s estate.

The small estate affidavit may not be an appropriate alternative to a formal probate if any of these circumstances or facts are present:

• if the debts or unpaid bills exceed the estate’s assets (for example, if the decedent applied for and received Medicaid benefits on or after March 1, 2005, the Texas Medicaid Estate Recovery Program ["MERP"] may have a significant claim against the estate to recover such benefits); or
• if in addition to the homestead, the decedent also owned other land, homes, or interests in land (that is, non-homestead real property); or
• if the decedent died leaving a Will or a Trust; or
• if one or more of the estate’s distributees do not have the legal ability to sign the small estate affidavit (for example, if a distributee is a minor - under 18 years old; or if a distributee has a guardian - either an adult with legal disabilities, or a minor); or
• if a stock transfer agent, or if a brokerage or other financial institution (typically situated outside of Texas) will not accept a certified copy of a small estate affidavit in order to transfer negotiable securities to the estate’s distributees.

Frankly, I’ve spent more time preparing some small estate affidavits than I would have spent on some formal probate proceedings - they can be time consuming. But the small estate affidavit may be the right solution under certain circumstances. It is designed to facilitate distribution of the most basic estate. The signers of a small estate affidavit are personally liable for any damage or loss which arises out of any payment or property distribution based upon their sworn statements in the small estate affidavit.

Contact Me

I assist clients in determining whether or not small estate affidavits are appropriate for them under their unique circumstances, and I also assist clients in the preparation of small estate affidavits.  Please contact me for all of your probate needs, I would like to help you. You may call my direct line: 281.807.9200, or contact me by email.