Small estate affidavits are a fast and affordable way to transfer property after someone has died, when the decedent died without a will and the other requirements set out in the Texas Estates Code are satisfied. Learn about using a small estate affidavit probate procedure in this article.
What is a Small Estate Affidavit?
Small Estate Affidavits (called SEAs for short) can be a fast and affordable way to transfer property to a decedent’s heirs.
An SEA is an alternative to a full probate administration in Texas and is available in limited circumstances.
When can I use a Small Estate Affidavit in Texas?
You may be able to use a SEA in Texas if you meet all of the requirements set out in the Texas Estate Code chapter 205.
Some of the essential requirements include the following:
- The decedent died without a will.
- The decedent left no more than $75,000 in property (not including homestead property, exempt property, and other non-probate property).
- The assets are worth more than the debts. (A homestead, exempt property, and other non-probate property do not count as assets, and mortgages or debts secured by exempt property do not count as debts for the SEA calculation.).
The only real property owned by the decedent was the decedent’s homestead property.
The homestead property will be inherited only by the decedent’s surviving spouse or minor child(ren) who were homesteading with the decedent at the time decedent died.
All heirs will sign the Small Estate Affidavit (or someone with legal authority will sign on their behalf). (Some courts will not approve an SEA if any of the heirs are minors. Talk with a lawyer if any of the decedent’s heirs are minors.)
There is no pending application for the appointment of a personal representative, and no court has appointed a personal representative.
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 does "intestate" mean?
"Intestate" means that a person has 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 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 structure that is owned by the person homesteading in it can:
- be located on owned or leased land,
- include up to 20 acres if the land is owned and used for residential purposes.
See the Texas Comptroller’s website for more information on homestead uses and benefits,
A qualifying homestead does not count toward the SEA $75,000 limit.
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
- Certain personal property listed in Texas Property Code 42.002(a) (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
Note: Exempt property also includes 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 have questions.
What is non-probate property?
Non-probate property is property that transfers to a beneficiary on the decedent’s death, without court involvement, because of planning set up during the decedent’s life.
Non-probate property might include:
- Trust property
- Transfer-on-death (TOD) or payable-on-death (POD) accounts
- Joint tenancy with right of survivorship assets
- Other beneficiary-designated accounts
This property is not counted as an asset for the purpose of an SEA.
What is a personal representative?
This is a person (called an executor or administrator) appointed by a court to handle estate administration duties.
- If the decedent died with a valid will, the decedent might have named someone to be their personal representative (executor).
- Or, the personal representative (in this case, administrator) might be chosen by the decedent’s beneficiaries, heirs, or even a judge.
In all cases, the personal representative must be approved by a court to have the legal authority to act on behalf of the estate.
What is estate administration?
Estate administration is the legal process of managing an estate (such as settling claims, paying debt, and distributing property) after a court approves a personal representative.
Some estates do not require administration, but many do.
Tip: Estate administration is required if property requires “letters testamentary” or “letters of administration” to transfer the property.
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” take. The court names the heirs according to the law set out in Texas Estates Code Chapter 201. Heirs typically include:
- Decedent’s surviving spouse (in all cases), and
- Decedent’s surviving children or descendants (the share they take depends on a few factors), or
- Decedent’s father and mother, brothers and sisters and their descendants, grandfather and grandmother and their descendants, and other relatives (when no spouse or descendants survive the decedent).
The heirs’ property share is similarly 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, see this chart, 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 must list detailed information on who the heirs are and what share of the property they should get.
Where do I turn in a Small Estate Affidavit?
SEAs must be filed in the court that has jurisdiction and venue over the estate.
In Texas, this is usually the county where the decedent had a fixed place of residence and lived in at the time of death.
Does it cost money to turn in a Small Estate Affidavit?
Yes, a filing fee applies to Small Estate Affidavits in every county in Texas. The typical SEA filing fee is a few hundred dollars.
Check with the clerk of the court where you will file the SEA to learn the fee that applies to your SEA form.
Will I have to go to court?
It depends. While Small Estate Affidavits must be filed with the court, not all counties require a hearing where you go to the court and speak with the judge to ask that your SEA be approved.
Check with the clerk of the court where you will file the SEA to learn if that court requires a hearing.
Do I need to hire a lawyer to prepare a Small Estate Affidavit?
Hiring a lawyer to prepare a Small Estate Affidavit is not required, and many courts publish do-it-yourself SEA forms for use in a specific county.
For example, you can find county-specific SEA forms on the following sites:
- Small Estate Affidavit (Bexar County)
- Small Estate Affidavit Forms (Collin County)
- Small Estate Affidavit Checklist (Dallas County)
- Small Estate Affidavit and Instructions (Denton County)
- Small Estate Affidavit (El Paso County)
- Small Estate Affidavit (Harris County Probate Court 1)
- Small Estate Affidavits Checklist (Hidalgo County)
However, it may be a good idea to talk with a lawyer before turning in your SEA form so you do not risk losing the filing fee for a small estate affidavit that is not approved.
You can hire a lawyer to advise whether a SEA is an appropriate probate procedure for you and to review your SEA form.
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:
This article explains how to create an affidavit of heirship.
This article explores ways to own property and plan for the future to minimize the need for probate.
Not all of a deceased person's property and debt have to be distributed through court.
Understand laws about what happens to your property after you die.
The deceased person's property may sometimes pass without the need for a formal court proceeding.