What is a Small Estate Affidavit?

By White & Mejias on May 10, 2024
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Using a small estate affidavit when someone passes without a will. 

This document comes into play when someone dies without a will and their estate is worth less than $75,000, not including their homestead real property. Once approved by the court, this document identifies a decedent’s heirs and their share in the decedent’s estate. Generally, this option is most often used for small bank accounts and a homestead property.

There are three main qualifications for this type of procedure. The decedent must have been deceased for at least 30 days before filing the application, no other petition for the appointment of a personal representative of the estate has been filed or granted, and the value of the estate assets, excluding homestead and exempt property, does not exceed $75,000 as of the date of the filing of this affidavit.

The judge, in the probate court, must examine the affidavit filed and sign it if the appropriate requirements have been met by the person filing the affidavit. Several requirements should be followed so that the affidavit is prepared correctly.

What can be transferred with this affidavit?

The only real property that can be transferred under this type of affidavit is homestead property. The title to the homestead may be transferred under a Small Estate Affidavit (See Texas Estates Code Section 205.006). There are some exceptions to this and to whom the home can transfer. The only person who may take title to real estate under a small estate affidavit must have already shared a homestead interest in the property with the decedent. Title to real property that is not homestead may not be transferred by this type of affidavit.

Potential Problems

The biggest problems with these affidavits usually arise when people try to draft and file them without an attorney. They file this in lieu of filing a valid will that someone left. They try to transfer title to property that is not homestead property, and the decedent was not domiciled in the county that the affidavit was filed in at the time of death.

For more information or to schedule a free consultation with a licensed attorney, call (713) 818-7116 or contact us online today.

Category: Probate