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Not All Small Estates Need Probate

The process of passing your assets to your heirs, called probate, can be complex or simple depending on what you own and how you pre-plan. If an executor is needed to help transfer the assets, then law requires intricate procedures to be followed.

In the case of a small estate, however, probate is not always necessary. A "small estate affidavit" can be used if the estate owes no debt, owns no real estate other than the homestead, is valued under $75,000 not counting the homestead, and there was no Will. This is excellent when the decedent had modest savings and the survivors are cooperative and few.

All of the heirs must join together to sign the affidavit. It must also be signed by at least two people who knew the deceased but who do not receive anything from the estate. All signatures must be notarized.

The affidavit must be written by an attorney and filed with the probate court's small estate records. Our office can assist you with the process.

A list of all of the heirs, including their names and addresses, must be included in the affidavit. Also, a list of all the assets and debts of the deceased must be included.

After filing, the affidavit is assigned a case number. The heirs must wait at least thirty days after the date of death before filing the affidavit. However, since this is an abbreviated procedure, no notice of the filing need be given by the heirs or by the court.

Approval of the affidavit by the probate Judge is mandatory, but no testimony is taken. After approval, the affidavit is recorded in the clerk's records and the heirs get certified copies.

The Affidavit and approving Order identify which assets the heirs are entitled to receive and authorize banks, transfer agents, and other persons who hold assets of the estate to deliver those assets to the heirs. This procedure, however, cannot be used to transfer title to land other than the homestead. If other land is involved, then a dependent administration and determination of heirship may be needed. If there had been a Will, then probate as a "muniment of title" or as an "independent probate" would have been a more appropriate legal procedure.

Paul Premack is a Certified Elder Law Attorney for Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. To contact us, click here.

Column published on September 14, 1990.


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