Managing a loved one’s affairs after they die is a process filled with grief and stress. Unfortunately, a lot of the stress comes from navigating the probate process. In limited circumstances, you can simplify the legal process using a small estate affidavit. Texas allows people to bypass parts of the probate process if the deceased person, the decedent, left an estate valued at $75,000 or less, excluding their homestead and certain other items.
Contact Robbins Estate Law for assistance understanding whether your loved one’s estate qualifies for a Texas small estate affidavit. Our patient, compassionate lawyers are well-versed in all areas of estate law and can help whether you qualify or not.
What Is a Small Estate Affidavit?
A small estate affidavit (SEA) is a document that allows a decedent’s legal heirs to use to avoid some of the usual probate requirements in Texas. Using a SEA enables you to bypass several probate steps, including having the court appoint a personal representative who notifies interested parties about the legal estate action, inventories the estate, resolves creditor claims, distributes assets, and closes the estate.
When Can You Use a Small Estate Affidavit?
You may use an affidavit of small estate in Texas when an estate:
- Has net positive assets after accounting for debts;
- Is valued at $75,000 or less, excluding exempt property; and
- Has no appointed personal representative, and no appointment request is pending.
Additionally, the decedent must have:
- Easily identifiable heirs;
- Died intestate (without a valid will) at least 30 days earlier; and
- Owned no real property other than a homestead shared by their spouse or minor children, if they have them.
A court must evaluate your SEA to ensure it meets these legal requirements.
What Is a Homestead?
A homestead is real property a person owns and primarily resides in. It may be a standalone or attached structure incorporating land and any improvements. The amount of land the homestead can include depends on whether the property is urban or rural and whether the owner is single.
A homestead is urban if it is:
- Located within municipal limits, a municipality’s extraterritorial jurisdiction, or a platted subdivision;
- Served by police and fire protection; and
- Provided at least three municipal utilities.
If a homestead is not urban, it is rural.
An urban homestead may include up to 10 acres of land in one or more connected lots. A rural homestead may include up to 100 acres if occupied by a single owner or up to 200 acres if occupied by a family.
What Property Is Exempt from the Estate?
You may exclude the decedent’s personal property up to $100,000 from the $75,000 SEA limit if the property will go to the decedent’s:
- Surviving spouse,
- Minor children,
- Adult children who live with the family, or
- Incapacitated adult children.
Personal property may include:
- Household furniture and family heirlooms;
- Consumables;
- Farming and ranching vehicles and equipment;
- Items used in a trade or profession;
- Clothing;
- Jewelry not comprising more than 25% of the total exempt property’s value;
- Up to two firearms;
- Bicycles and other athletic and sports equipment;
- A motor vehicle;
- Up to two horses, mules, or donkeys and riding gear;
- Up to 12 cattle, 120 fowl, and 60 other livestock; and
- Pets.
Property that passes outside of probate may also be exempt.
Who Are a Decedent’s Heirs?
When someone dies without a will, the people who inherit their property, their heirs or distributees, are determined by Texas’ intestate succession laws. Property passes to heirs based on what relatives survive.
From first entitled to last, legal heirs include the surviving:
- Spouse,
- Children and their descendants,
- Parents,
- Siblings and their descendants, and
- Grandparents and their descendants.
If a person dies with a surviving spouse and children they do not share with the spouse, the children take one part of the estate, and the spouse takes another.
How Do You Use a Small Estate Affidavit?
Every adult distributee and two disinterested witnesses must sign every SEA. In some circumstances, the guardian or next of kin of any minor or incapacitated distributees may also need to sign.
The SEA must also:
- Identify the decedent, what county they lived in, and attest that they died without a valid will;
- List all of the decedent’s known assets and liabilities;
- Attest that 30 days have passed since the decedent’s death, no representative has been appointed and no appointment request is pending, and the value of the estate after subtracting debts and exempt property is $75,000 or less;
- Provide the name and address of every distributee; and
- Explain how the distributees are entitled to the estate.
You can use a standard small estate affidavit in Texas form to provide all necessary information—unless you live in Travis County, which uses a different form.
After you complete the form, file it with the court where the decedent lived, typically a county court. You must also provide a copy of the affidavit to anyone who:
- Owes the estate money,
- Has or possesses estate property, and
- Oversees or manages any estate interests or rights.
If the court approves the SEA, the estate passes to the heirs.
Get Help with a Small Estate Affidavit in Texas
Although simpler than estate administration, completing a small estate affidavit in Texas still brings stress and challenges. The lawyers at Robbins Estate Law focus our practice on estate matters.
When you contact us, we can help you determine whether you qualify to use an SEA and, if you do, help you accurately and efficiently complete and file the form.
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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