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Types of Probate Procedures: Small Estates

There are many types of Probate procedures. These procedures vary considerably in each state. Texas has more than one kind of procedure, although not all probate procedures are available to all estates.


We will be publishing a four-part series on the different types here in Texas. In this article we will discuss the Small Estate Affidavit Procedure, which is one probate procedure available if someone passed away without a will.


For most probate procedures, some level of court involvement is necessary. In urban areas, the Texas legislature has established specialized "probate courts" to undertake this task. In counties without large urban centers, probate is handled by county courts at law, which also handle other types of cases.


Small Estate Affidavit Procedure


This type of procedure may be used where the "probate" estate is made up of property not exceeding a maximum value set by state law and can only be used if the Decedent did not have a will. This maximum under Texas law is now currently $75,000, excluding the value of the decedent's homestead and certain exempt assets. The small estate affidavit will not work to transfer title to real estate other than the decedent's home and cannot transfer the decedent’s home to someone other than the surviving spouse or minor or incapacitated minor. Under the affidavit procedure, no Will is filed for probate, and no executor is appointed. The person settling the estate, usually the surviving spouse or next of kin, signs a legal form known as an affidavit stating such things as:


  1. the statutory waiting period following the death (30 days) has elapsed

  2. the estate does not exceed the legal limits

  3. the person signing the form is legally entitled to receive the decedent's assets


The affidavit must be sworn to by two disinterested witnesses and by all adult distributees.

Disinterested witness means a “witness who is not a spouse, child, parent, sibling, grandchild, grandparent, or guardian of or other adult who exhibited special care and concern for the individual who makes, amends, revokes, or refuses to make an anatomical gift”.


Costs


Because the probate court is not involved in overseeing the process of administration, the costs of using the affidavit procedure are low The lack of court involvement may result in faster settlement. Parties receiving the affidavit are required to transfer the decedent's property to the designated person or persons. As indicated above, however, the affidavit procedure is not effective to transfer title to real property other than the decedent's homestead to anyone but the surviving spouse or a minor or incapacitated child/children. If the decedent owned real property other than his or her homestead, had a homestead but was not survived by a surviving spouse and/or minor or incapacitated children, or owned non-exempt assets with a value more than $75,000, another probate procedure must be used.


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We hope you found this article valuable and will continue to follow as we share more information on these types of subjects. Please reach out to The Hoggatt Law Firm, PLLC if you feel that we could assist you with any of the legal matters discussed in this article. The Hoggatt Law Firm, PLLC is ready to assist you with your estate planning, probate and business’ legal needs.


The Hoggatt Law Firm, PLLC presents the information in this article for general education purposes only. Although this article discusses legal issues, it is not legal advice. The law and the content may have changed since this article was written, and The Hoggatt Law Firm, PLLC makes no warranty or guarantee about the continuing accuracy of the information presented. Use of this article does not create an attorney-client relationship, and The Hoggatt Law Firm, PLLC does not represent you unless and until we are expressly retained in writing.

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