No will, no clue, no problem!
Has a close relative passed away without a will? Do they have a bank account, a house, or a car, that require a change of title or possession?
Most people aren’t sure what to do in this situation and often neglect to address it. But there are often easy and simple ways to handle these situations without much if any intervention or oversight by a Probate Court.
The Requirements
Generally, Texas law favors informal administration of estates. One of those informal procedures is called a “Small Estate Affidavit.”
In order to use this procedure, the deceased person must have passed without a will; and their estate must be less than $50,000 not including the value of their homestead or other exempt property. Additionally, there cannot be any pending application for a personal representative for the relative’s estate.
– See Tex. Prob. Code § 137
The Procedure
The procedure for a small estate administration is fairly simple. The affidavit is filed with the county or Probate Court in the county where the deceased lived. The affidavit cannot be filed until 30 days after the person passed away, it must be signed by two disinterested witnesses, and by all the beneficiaries.
The affidavit contains, among other things, a list of the deceased person’s property, assets, debts, surviving heirs, and contact information. Once this affidavit is filed with the Court, the beneficiaries may use it to obtain a transfer of title to a vehicle or a house.
– See Tex. Prob. Code §§ 137(a)(1)-(7); 137(c) Tex. Trans. Code § 501.074
The Drawbacks
However, there are potential pitfalls and drawbacks to a small estate affidavit. This procedure cannot be used to transfer title to any real property unless that real property is considered to be the deceased person’s homestead.
– See Tex. Prob. Code § 137(c)
Also, as mentioned above, if the person’s nonexempt property is worth more than $50,000, then you cannot use a small estate affidavit. Furthermore, complications can arise in trying to track down all known beneficiaries. The biggest risk here is that anyone executing such an affidavit is liable for any damages that may come up due to the transfer of property with the affidavit.
– See Tex. Prob. Code § 138
Why Does This Matter?
Probating an estate can be expensive, especially when there isn’t much in the estate that needs to be transferred to beneficiaries.
It’s important when a relative passes that their family address transfer of their estate to beneficiaries. Failing to do so can cause significant problems and unnecessary headaches down the road. Often small estate procedures are a cheap, easy, and convenient way for relatives and beneficiaries to transfer their deceased relative’s estate.
–Authored by James R. Palomo, Esq.,
Matthew Harris Law, PLLC – Estate Management Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479