Transferring Property After Death and Avoiding Probate Court
This article was prepared by the clinical legal program at the University of Houston Law Center, and contains information from other sources as well.
DISCLAIMER: Nothing in this article should be considered legal advice. It is solely for informational purposes. Nor does it substitute for consultation with a competent probate attorney. Nothing in this material creates or implies any attorney-client relationship.
Chapter 205 of the Texas Estates Code allows the heirs at law (distributees) of someone who died intestate (that is, died without a will) to file a small estate affidavit with the court as an alternative to going through the probate process. In order for the distributees to file the small estate affidavit, the following must be true about the estate:
- No petition for the appointment of a personal representative is pending or has been granted;
- Thirty days have passed since the decedent has died, and
- The value of the assets of the decedent’s estate, excluding the value of the decedent’s homestead and exempt property, is less than or equal to $75,000
- an affidavit that meets the requirements of Section 205.002 is filed with the clerk of the court that has jurisdiction and venue of the estate;
- the judge approves the affidavit as provided by Section 205.003;
- the distributees comply with Section 205.004 for notice; a certified copy must go to each person who owes money to the estate, who is in custody or possession of estate property, or who anyone else who acts as an agent for any other right belonging to the estate.
- a certified copy of the affidavit and order of approval are filed in the county property records.
The small estate affidavit must be sworn to by two disinterested witnesses (that is, people over age 18 who are not heirs to the estate) as well as each distributee of the estate who has legal capacity. It also must include a list of all known estate assets and liabilities, including which assets are exempt, and contain the relevant family history that show each person’s right as an estate heir to receive estate assets.
The small estate affidavit will only transfer title of the deceased person's homestead. Any other real property owned by the decedent cannot be transferred by using or filing a small estate affidavit. To transfer the decedent’s homestead to the distributees, the real property, and a proper legal description of it, must be listed in the affidavit among the deceased's assets. Once the small estate affidavit is approved by the judge, a certified copy of the affidavit and the court order approving it must be filed (that is, "recorded") with the real property records of the county where the real property is located.
An affidavit of heirship can be used when someone dies without a will, and the estate consists mostly of real property titled in the deceased’s name. It is an affidavit used to identify the heirs to real property when the deceased died without a will (that is, intestate). For help preparing one, click here.
The affidavit is filed ("recorded") with deed records in the county where the decedent’s real property is located. It does not transfer title to real property. However, Texas Estates Code chapter 203.001 says it becomes evidence about the property once it has been on file for five years. The legal effect of the affidavit of heirship is that it creates a clean chain of title transfer to the decedent’s heirs.
An affidavit of heirship should be signed by two disinterested witnesses. To qualify as a disinterested witness, one must be knowledgeable about the deceased and his or her family history, but cannot benefit financially from the estate. Each disinterested witness must swear under oath as to specific information about the deceased. Usually a title company will accept the affidavit to show the chain of title for purposes of selling the real property, but the heirs should check with their title company to be sure.
The person witnessing the affidavit should not be an heir, related to the deceased, or have any interest in the estate. When using an affidavit of heirship in Texas, the witnesses must swear to the following conditions:
- They knew the decedent.
- The decedent did not owe any debts.
- The true identity of the family members and heirs.
- The person died on a certain date in a certain place.
- The witness will not gain financially from the estate.