Small Estate Affidavits & Texas Law: Dying without a Will

EDITOR’S NOTE:

Texas residents with relatively small estates may still have enough assets to bequeath something to their heirs. If, however, they die without a will, certain aspects of Texas law come into play. In this blog post, we explain some of the issues surrounding dying without a will in Texas.

 

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If a person dies without a will, the family members who inherit under the intestacy provisions of the Estates Code (hereafter referred to as “Heirs”) may submit to the Probate Court a Small Estate Affidavit. If the Judge signs an Order approving the Small Estate Affidavit, the Heir(s) would collect the assets of the deceased person (hereafter, the “Decedent”) without letters or an administration

A few of the important requirements are listed below.

1. The estate of the Decedent must be less than $50,000.00. The homestead and exempt property of the Decedent are excluded from this calculation.
2. The affiant must swear that no petition for the appointment of a personal representative may be pending or been granted.
3. Assets must exceed liabilities.
4. The only real property that can be listed is the homestead of the Decedent.

In the affidavit, the distributees (i.e. person claiming to be Heirs) must describe the family history facts concerning heirship that show each distributee’s right to receive estate money or property.

Each distribute and two disinterested witnesses sign the affidavit and in each case, such person must possess legal capacity to sign the affidavit. If applicable person is a minor child, the natural guardian (i.e. parent) might be able to sign on behalf of the minor child. If the distributee is a ward, then the guardian of the incapacitated distributee would sign the affidavit.

Each person who executes the affidavit is liable for any damage or loss to any person that arises from a payment, delivery, transfer or issuance made in reliance on the affidavit.

EDITOR’S SUMMARY

For anyone with significant assets, it is advisable to engage a qualified attorney for estate planning purposes. For those who die without a will, the process of probate can ensue. In this blog post, we examined the situation of how dying without a will in Texas may be handled for smaller estates. If you or your loved ones are facing a problem with estate, probates, or trusts, reach out to one of our Dallas probate attorneys to discuss your situation. Our office handles disputes and litigation surrounding wills, estates, and trusts. Please note that we now have a satellite office in Plano / Frisco, Texas, as well.


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