Should You Try to Avoid Probate in Texas?

Unlike other states, Texas has a plain-language and simplified probate system. This isn’t new. Some version of this layman-friendly probate system has been around since the 19th century. In many other states, people seek to avoid probate with complicated estate planning. That’s not necessary in Texas. The Texas probate system is different and typically simpler than in other states, The Texas probate system is not inherently lengthy, expensive, complicated, or always to be avoided. Still, there are some alternatives to probate in Texas. One of them is the Small Estate Affidavit.

Small Estate Affidavit

A small estate affidavit is the cheaper alternative to the probate process. If the Decedent dies intestate (without a Will), and the total value of the estate, not counting the value of the Decedent’s homestead and other exempt property, is less than $50,000, then one can file an affidavit in the Probate Court in the county where the Decedent resided, identifying the heirs of the Decedent’s estate under oath, and by having the affidavit witnessed by two disinterested people that swear that the family history information contained in the affidavit is accurate. The affidavit must also be sworn to by all beneficiaries that have legal capacity and possibly by the natural guardian of any minor or incapacitated person who is a beneficiaries. To determine the proper heirs, refer to Texas Estates Code Sections sections 201.001 and 201.002.

Probate Court Approval

The beneficiaries of a small estate can get the assets of the estate if they file a Small Estate Affidavit with the Probate Court and pay off any creditors or otherwise make arrangements for them to receive what they are due.

Why Use a Small Estate Affidavit?

If a Decedent had very few assets, a Small Estate Affidavit is beneficial. Limited assets include bank accounts, savings bonds, an automobile and homestead. A Small Estate Affidavit only transfers the title to real property that was Decedent’s home. The Decedent will likely have owned other property besides a homestead, which means that a Determination of Heirship proceeding may be needed. Be prepared to educate other states’ transfer agents regarding how the Small Estate Affidavit works if the Decedent was the owner of publicly traded stock or bonds, brokerage accounts, and partnership accounts. Many states don’t have a Small Estate Affidavit equivalent. You might also find that certain transfer agents won’t allow the stock or bond to be transferred unless a court order is present.

You can find out more about the Small Estate Affidavit in Chapter 205 of the Texas Estates Code. There is also a Texas Small Estate Affidavit form and checklist from the Texas Bar.

Conclusion

Some people might not need to go through probate, especially of the value of the estate is relatively low. A Small Estate Affidavit may be an option. One should consult with a law firm to know their options.

Do you need a lawyer to probate a will in San Antonio, Texas?

Hire an Experienced Probate Attorney in San Antonio. Do you need help with a probate matter in San Antonio-metro area or the surrounding communities? We are experienced probate lawyers who represent clients with sensitive probate matters. If so, please visit our homepage to see how we can help.

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Related Questions

Can you settle an estate without probate in Texas?

Thinking about settling an estate without probate in Texas? Here is a list of alternatives to probate in Texas: Collection of Final Paycheck; Small Estate Affidavit; Muniment of Title; Affidavit of Heirship; Judicial Declaration of Heirship; Informal Family Settlements; Revocable Living Trust. Make sure your accountant, lawyer and financial planner discuss with you all of the probate alternatives to consider.

Does a small estate affidavit need to be filed with the court in Texas?

Under Texas law, after completing the Small Estate Affidavit and the Affidavit of Heirship, you must file them with the clerk of court at the probate court in the county where the deceased resided.

How do you avoid probate with a small estate in Texas?

If you have a small estate in Texas, you may use a small estate affidavit to avoid the probate process. A small estate affidavit is a document that you can use to avoid the probate process when you have a small estate in Texas. A small estate affidavit is not the same as a will, but it has many of the same benefits.

How to transfer property after death of parent without will?

Most recommend two documents for transferring property after death without a Will: An Affidavit of Heirship, and the Deed.

What is an Affidavit of Heirship?

An Affidavit of Heirship is generally used when someone dies without a Will and the estate consists primarily of real property titled in his or her name. An Affidavit of Heirship transfers title from the Decedent’s name into the names of the heirs without having to go through the probate process. The Affidavit is filed and recorded with deed records in the county where the Decedent’s real property is located. The legal effect of the Affidavit of Heirship is that it creates a clean chain of title transfer to the Decedent’s heirs.

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