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Small Estate Affidavits

This article answers frequently asked questions about using a small estate affidavit to probate an estate in Texas.

When can I use a small estate affidavit to probate an estate in Texas?

Small Estate Affidavits (SEAs) can be an affordable way to transfer property to a decedent’s heirs. You may be able to use an SEA to probate an estate in Texas if you meet all of the requirements of Texas Estates Code Chapter 205. The important requirements include:

  • The decedent died without a will.
  • The decedent left less than $75,000 in property (not including homestead property and exempt property).
  • The assets are worth more than the debts.
    • (Note: When calculating the value of the debts and the assets, do not consider any mortgages or debts secured by exempt property as debts, and do not consider homestead and exempt property as assets.)
  • The only real property owned by the decedent was decedent’s homestead property, and the real property will be inherited only by person(s) homesteading with the decedent at the time decedent died—decedent’s surviving spouse and minor child(ren) who resided on property with decedent.
  • You are able to locate all of the heirs and all of the heirs will sign the Small Estate Affidavit (or someone with legal authority will sign on their behalf).
  • There is no pending application for appointment of a personal representative and no personal representative has been appointed by a court.
  • There is no administration needed.

What is a decedent?

A decedent is a person who has died. Courts and court papers regularly use this word in place of the name of the person who has died.

What is exempt property?

Exempt property includes the following:

  • the homestead for the use and benefit of the decedent's surviving spouse and minor children; and
  • some of the following categories of property, (up to $100,000 for a family or $50,000 for a single adult) for the use and benefit of the decedent’s surviving spouse and minor children, unmarried adult children remaining with the decedent's family, and each other adult child who is incapacitated:
    • home furnishings, including family heirlooms;
    • provisions for consumption;
    • farming or ranching vehicles and implements;
    • tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession;
    • clothes;
    • a limited amount of jewelry;
    • two firearms;
    • athletic and sporting equipment, including bicycles;
    • a two-wheeled, three-wheeled, or four-wheeled motor vehicle for each member of a family or single adult who holds a driver's license or who does not hold a driver's license but who relies on another person to operate the vehicle for the benefit of the nonlicensed person;
    • certain livestock and food on hand for their consumption; and
    • household pets.

Note: Exempt assets also include the decedent’s pension benefits and IRAs. Insurance benefits are also exempt. Determining which property is exempt can be complicated. Talk with a lawyer if you are claiming any property is exempt and you have questions.

Read the law here: Texas Estates Code § 353.051; Texas Property Code § 42.002(a).

What is a homestead?

A homestead is a place lived in and owned by an individual (not a company) and includes a:

  • separate (stand-alone) structure,
  • condominium, or a
  • manufactured (mobile) home.

A homestead can be located on owned or leased land, as long as the person that lives in the structure (home) owns the structure.

A homestead can also include up to 20 acres of land, if the land is owned by the person that lives in the structure (home) and the person uses the land for a residential purpose.

For more information on homestead uses and benefits, see the Texas Comptroller’s website.

What does "intestate" mean?

"Intestate" means that a person died without a valid will. When someone dies intestate, the law sets out who is entitled to the property in the estate, and in what percentage.

What is a personal representative?

This is a person (called an executor or administrator) that is appointed by a court to handle duties of the estate.

  • If the decedent died with a valid will, the decedent may have designated someone to be his or her personal representative (executor) at the time of the decedent’s death.
  • Or, the personal representative (in this case, administrator) might be designated by the decedent’s beneficiaries, heirs, or even a judge.

In all cases, the personal representative must be approved by a court to have legal authority to act on behalf of the estate.

What is "estate administration"?

Estate administration is the legal process where an estate is managed (such as settling claims, paying debt, distributing property) after a personal representative is approved by a court.

Some estates do not require administration, but many do.

Tip: If property requires “letters testamentary” or “letters of administration” to transfer the property, estate administration is required.

Who gets the estate property when someone dies without a will in Texas?

When someone dies without a will in Texas, the decedent’s intestate “heirs” are entitled to the property in the estate.

  • Heirs are named by the court, according to the law set out in Texas Estates Code Chapter 201.
    • Depending on who survives the decedent, heirs can include the decedent’s surviving spouse, children and their descendants, father and mother, brothers and sisters and their descendants, grandfather and grandmother and their descendants, and other relatives.
  • Once a court names the heirs, the heirs’ property share is calculated according to the law set out in Texas Estates Code Chapter 201.
    • For a user-friendly guide on intestate descent and distribution for decedents that died after September 1, 1993, read this helpful chart published by the Travis County Probate Court: Texas Descent and Distribution.

Because a Small Estate Affidavit form can only be used when someone dies without a will, the SEA form will need to list detailed information on who the heirs are and what share of property they should get.

 

What are the most common mistakes people make when filling out an SEA?

  • Leaving blanks when the SEA form requires an answer. 
    • The court can’t approve an SEA if needed information is missing. 
    • Before getting signatures, carefully check all pages to make sure you’ve answered all necessary questions.
  • Filling out the chart in Section “I” of the SEA form incorrectly, including some of the following common mistakes:
    • Not listing assets with enough detail to identify them.
    • Listing assets with “unknown” value.
    • Not including facts to show why each asset of a married decedent is “separate” or “community” property.
  • Filling out the chart in Section “L” of the form incorrectly, including some of the following common mistakes:
    • Not listing all heirs.
    • Not getting the shares right in the heirship chart.
    • Not filling out all required columns in the heirship chart.  (Tip: Always fill out both “separate property” columns and also fill out the “community property” column if the decedent was married.)

Does it cost anything to file (turn in) a Small Estate Affidavit?

Yes. There is a fee to file a Small Estate Affidavit. The fees vary by county. Call the county clerk’s office or district clerk’s office in the county where the decedent lived at the time of death to learn what the fees are.

However, if you have a low income, you may qualify to have your court fees waived. To ask the court for a fee waiver, fill out this form:

●    Statement of Inability to Afford Payment of Court Costs or an Appeal Bond.

This form tells the judge you can't afford to pay the court fees. Fill it out completely in blue or black ink and sign it. Do NOT leave blanks.

For more information, read Article: Court Fees & Fee Waivers.

Where do I file (turn in) a Small Estate Affidavit?

Turn in the Small Estate Affidavit to the clerk that serves the court that hears probate matters in the county where the decedent lived (had a domicile or fixed place of residence) at the time of death.  You can call the court clerk to learn which court hears probate matters in that county. Depending on the county, this might be a probate court, county court, or county court at law. 

Will I have to go to court?

It depends. A hearing is not always required for a Small Estate Affidavit to be approved. Contact the court where you turn in the SEA to learn if you will need to go to court for a hearing.

Do I need to hire a lawyer?

You don't need a lawyer, but it is a good idea to talk to one. Small Estate Affidavits can be complicated. Talk with a lawyer if you have any questions or if any of the following apply:

  • If there’s any question about whether you need an administration,
  • If you have any questions about what property is exempt, or
  • If the decedent did not have a domicile or fixed place of residence in the county where you want to turn in the SEA.

Tip: You can hire a lawyer just to give you advice, review your forms, help you fill out your forms, or help you prepare for the hearing. You may then be able to handle the other parts of your case yourself. Hiring a lawyer for a limited purpose is called limited scope representation.

You may also be able to talk with a lawyer for free at a legal clinic. If you need help finding a lawyer, you can:

 

Where can I read the law about Small Estate Affidavits?

Read the law here:

Texas Estates Code Chapter 205, Small Estate Affidavit, and 
Texas Estates Code Chapter 201, Descent and Distribution.