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San Antonio, TX Family Law and Military Divorce Blog

Sunday, July 20, 2014

Formal Probate Alternatives - Part 2: Small Estate Affidavit

This is the second blog in a three-part series that describes alternatives available in Texas when a full, formal probate either isn't possible or necessary.  Today, we'll discuss the "Small Estate Affidavit."

The Small Estate Affidavit may used by the heirs of the decedent's estate who are entitled to a share of the decedent's property (i.e. the "distributees") under Texas laws of intestacy.  The laws of intestacy prescribe the order in which descendants (e.g. children and grandchildren), ancestors (e.g. parents and grandparents) and/or other relatives (e.g. brothers, sisters, nieces and nephews, and cousins) share in distribution of the decedent's property when there was no valid Will.

When approved, the Small Estate Affidavit permits distribution of the property directly to the heirs without need for appointment of a Personal Representative to administer the estate. Other requirements that must be met before a Small Estate Affidavit can be used include:

  1. At least 30 days have elapsed since the decedent's death;
  2. No petition for appointment of a Personal Representative is pending or has been granted; and,
  3. The value of the estate's assets, excluding the decedent's homestead and exempt property, does not exceed $50,000.

The Small Estate Affidavit filed with the court must contain sworn statements by two disinterested witnesses and all distributees (i.e. persons who will take property) that list:

  1. All estate property and debts;
  2. The names and address of each distributee; and,
  3. Relevant marital and family history that proves each distributee's right to received property.

Once approved and signed by the court, the distributees must provide a copy of the Small Estate Affidavit to each person who owes money to the estate (i.e. borrowers) or has custody of property off the estate (i.e. banks holding the decedent's money).  Prior to distributing the decedent's property, the distributes must also ensure the decedent's valid debts get paid by liquidating assets other than an exempt homestead and any exempt personal property.

When title to the homestead will transfer, the Small Estate Affidavit can be recorded in the deed records of the county in which the decedent's homestead is located. Then, any bona fide purchaser of the homestead is entitled to rely upon the Small Estate Affidavit to take ownership free and clear from future claims of any potential undisclosed heirs.  A bona fide purchaser of the homestead, however, remains liable to any lawful creditors who were not paid by the distributees prior to distribution of the decedent's property.

Altogether, there a several advantages and potential pitfalls to using a Small Estate Affidavit.  A qualified probate attorney can advise whether use of a Small Estate Affidavit, rather than some other alternative to a full, formal probate, fits your circumstances.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm. The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


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