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Small Estate Affidavit: An Option For Uncomplicated Situations

A Small Estate Affidavit is an alternative to probate that applies when someone dies without a Will but leaves an estate that is relatively small an uncomplicated.  In those situations, the heirs can prepare and file a Small Estate Affidavit with the Court.

To qualify, the following conditions must be met:

  1. The value of the Estate other than the homestead is less than $75,000;
  2. The Affidavit is signed by all of the heirs of the Estate;
  3. The Affidavit is signed by two disinterested witnesses who do not stand to inherit from the Estate and are not being paid for their testimony;
  4. There is no pending proceeding to appoint an executor or administrator of the Estate; and
  5. The Affidavit is submitted to a proper Court for review and approval.

If all of these conditions are met, then the Court can issue an order approving the affidavit, which will also order that the assets of the estate be distributed to the heirs, as reflected in the Affidavit.

Even though the Small Estate Affidavit does not require any court proceedings, it results in the Court issuing an order directing the disposition of the Estate.  That order is going to allow the heirs to collect bank accounts and other assets that would not otherwise be released without some sort of Court order, but the entire process is much shorter and less complicated than a normal probate administration.

The biggest caveat to the Small Estate Affidavit is that it can only relate to estates under $75,000.  While Texas law allows for estate debts to be listed and paid pursuant to a Small Estate Affidavit, it is practically very difficult to pay debts using a small estate affidavit.  If debts need to be paid, it is generally better for one of the heirs to pay the debts and then be reimbursed from the estate’s assets, or the administration should be handled as a full probate administration so that the executor or administrator can address the debts as part of the administration.

For help with this affidavit or other alternatives to probate, contact Ford + Bergner LLP in Houston, Dallas or Austin by sending an email or calling 713-352-0937.

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