Small Estate Affidavit
For people that do not have a substantial estate, going through probate seems like a waste of money and time. For example, some people only own a family home and a bank account with a modest amount in it. You can use a small estate affidavit to transfer property to heirs to avoid probate. However, not all estates can be transferred using a small estate affidavit. An experienced estate planning or inheritance attorney can look into your situation and advise you on whether you need a Will and Testament or not.
When You Should Take Advantage Of A Small Estate Affidavit
You should take advantage of a Small Estate Affidavit if:
- The decedent died without a Will
- The decedent left property with a value less than $75,000 (does not include homestead property and exempt property)
- Not less than 30 days have passed since the decedent died
- The nonexempt assets in the estate exceed the total known debt of the estate
The exempt property includes the homestead where the decedent, surviving spouse, and children resided in. Another exempt property is up to $100,000 worth of personal property that will be used for the use and benefit of the decedent’s spouse, adult children still living at home and incapacitated adult children. If the decedent was single then personal property worth up to $50,000 is considered exempt property. You can find this information in Texas Property Code section 41.002.
Examples Of Exempt Property
Exempt property includes personal property such as:
- Home furnishings, including family heirlooms
- Farming or ranching implements and vehicles
- Provisions for consumption
- Tools, equipment, books, and apparatus including boats and motor vehicles used in a trade or profession
- Two firearms
- A limited amount of jewelry
- Athletic and sporting equipment, including bicycles
- Household pets
- Certain livestock and food on hand for their consumption and more
- Pension benefits and IRAs
Understanding Probate And Gross Estate
The probate estate is the property or assets that are in the decedent’s name alone and do not have any beneficiary designated. A gross estate is all the decedent’s personal and real property whether or not they are probate assets or non-probate assets. So the $75,000 limit only refers to the decedent’s probate estate not the gross estate.
That means that if the decedent had a $200,000 life insurance policy and a $250,000 retirement plan, and had named his wife as the beneficiary for both, his estate might still qualify for small estate administration if his remaining assets do not exceed $75,000 (excluding the decedent’s homestead).You can file a small estate affidavit form with instructions on your county’s website. File the affidavit with the probate court which will review it to see if it meets all the requirements.
Who Gets The Estate Property When Someone Dies Without A Will?
In Texas, the property is transferred to the decedent’s intestate heirs if the decedent did not leave a Will. This includes close family members such as the decedent’s spouse, children, and their descendants, and the decedent’s own mother, father, siblings and their descendants and relatives.