When can I use a Small Estate Affidavit to probate an estate in Texas?
Small Estate Affidavits (called SEA for short) 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 set out in the Texas Estates Code Chapter 205. Some of 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/or 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;
- 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: https://comptroller.texas.gov/taxes/property-tax/exemptions/residence-faq.php.
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 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.
This article answers frequently asked questions about using a small estate affidavit to probate an estate in Texas.
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