Probate costs can drastically minimize an estate’s value, especially if it is a modest one to begin with. For those handling an estate with a small value, you may be asking, Do you have to probate a small estate in Texas?
A small estate affidavit, or SEA, is an alternative to traditional probate in Texas for a small estate. The filing process is quite simple and can save you time, money, and a lot of hassle.
Do You Need Probate for Small Estates?
Not all estates need to go through probate. If the estate is made up of only jointly titled assets or assets with beneficiary designations (known as non-probate assets), then you do not have to probate the estate. You can also avoid the formal probate process by filing a small estate affidavit, as long as the estate qualifies.
What Is a Small Estate Affidavit?
A small estate affidavit is a legal document that allows you to transfer assets without going through a formal probate proceeding. Keep in mind, you cannot use this affidavit to transfer title to real estate other than the decedent’s homestead. In other words, if the decedent owned real estate in addition to his or her home, you will not be able to use a small estate affidavit.
What Qualifies as a Small Estate in Texas?
There are many requirements to meet under Texas’s Estates Code to qualify and use a small estate affidavit. A Texas probate attorney can help you evaluate the estate to determine its eligibility. Here are the general qualifications for a small estate affidavit in Texas.
Decedent Did Not Have a Will
Only estates where the decedent did not leave a will qualify for a small estate affidavit.
No Personal Representative for the Estate
There cannot be a personal representative of the estate if you use a small estate affidavit. Even if someone just filed a petition seeking appointment, you cannot use the small estate affidavit.
Estate’s Value Does Not Exceed $75,000
Under Texas law, a small estate is one that has a value of $75,000 or less. There are many rules to follow when calculating the value of the estate. For example, only assets titled solely in the name of the decedent (known as probate assets) make up the estate’s value. Additionally, certain property is exempt from counting toward the value, such as the decedent’s homestead. There are other types of exempt property, including furniture, vehicles, and other property meant for the decedent’s heirs.
Estate Assets Exceed Debts
The estate’s assets must be more than its debts. When calculating debts, mortgages and other debts secured by exempt property are not included.
Heirs Are Known and Will Sign
You can only use a small estate affidavit if all the decedent’s heirs are known and can be found. Texas law requires every person legally entitled to distributions from the estate to sign the affidavit.
Who Can File a Small Estate Affidavit?
Only those who would inherit under Texas intestate succession laws can file a small estate affidavit. Basically, anyone who has a legal right to get assets from the estate can file. This includes spouses, children, or other close relatives if the decedent was neither married nor had children.
How Do You File Probate in Texas for a Small Estate?
Once you determine that the estate qualifies, filing a small estate affidavit is a relatively straightforward process. Each county has its own affidavit form that you complete and file with the local probate court. All affidavits must include the following:
- Statements affirming small estate qualifications (e.g., no personal representative, $75,000 limitation, and elapse of 30 day waiting period);
- A list of all known estate assets and liabilities;
- Names and addresses of all legal heirs;
- Relevant family history regarding the heirs;
- Signatures of two disinterested witnesses; and
- Signatures of all legal heirs of the estate.
A judge then determines if the affidavit meets all of the legal requirements.
Do you qualify for probate?
Fill out our quick questionnaire to determine if you need probate, what type of probate you may need, and estimated fees.
Contact the Probate Attorneys at Robbins Estate Law
If you’re wondering how to use a small estate affidavit for your loved one’s estate, contact Robbins Estate Law. Knowing the nuances of Texas probate law, we can calculate the accurate value of the estate and discuss your probate options. Our approach and focus is helping families with the legal side of losing a loved one. Give us a call or contact us online to speak with one of our attorneys.
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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