Small Estate Affidavits / Affidavits of Heirship

Small Estate Affidavit

Sometimes a less formal approach is best, although technically the Probate Court is involved, if there is no will (and even in some cases where a Will does exist) and the Decedent left an Estate whose value is $50,000 or less, the Heirs can use the Small Estate Affidavit to collect the assets or property of the Estate.  Once the Small Estate Affidavit is submitted to the Probate Court as per §137 of the Texas Probate Code, upon approval by said Court, the signed Order Approving the Small Estate Affidavit is sufficient authority for all persons or entities dealing with the distributees to allow for release of the assets of the Decedent to the same extent as if the persons or entities were dealing with a personal representative of the Estate.

Note:  Small Estate Affidavit does not serve to transfer title to real property other than the homestead, if the Decedent owned a homestead and other real property this procedure is not correct.

Affidavits of Heirship

Affidavit of Heirship is used if the Decedent died without leaving a valid Will and had only real estate.  In order for title to the real property to transfer to the Decedent’s heirs they can, file the Affidavits of Heirship with the appropriate county deed records, this is based on where the real estate owned by the Decedent is found.

Texas Probate Code, § 52A, states that the Affidavit shall be signed by two disinterested witnesses, I prefer to use individuals not related by neither blood nor marriage who do not stand to gain from the Affidavit’s submission, the individuals will attest to their familiarity with the affairs of the Decedent, as well as the Decedent’s family history.  More specifically, the disinterested witnesses must swear under Oath to the following:

  • They knew the Decedent.
  • The date of death of the Decedent, in a certain county.
  • The identity of family members and heirs of the Decedent.
  • State that the Decedent did not owe any debts at the time of his death, and that the witnesses do not gain financially from the Estate.

Filing the signed Affidavit for recording in the deed records of the County allows for the chain of title to be linked from the Decedent to the heirs.  This mechanism is widely used in Texas, most title companies and real estate companies will accept it, but be aware that this may not necessarily be that case outside of Texas.

Non-Probate Transfers

Accounts with Beneficiary Designations – Be aware that some assets can pass according to a beneficiary designation card, right of survivorship or pay on death (POD) clause, or by some specific contract provision.  The types of assets that can be dealt with in this manner include, but are not limited, to:

  • Life insurance policies, stocks, or bonds.
  • Retirement benefits that have accrued or vested, if allowed by the plan.
  • Bank accounts noted as being payable on death or with right of survivorship.

Make sure that you discuss these options with the financial entity, credit union, or bank to see if the asset qualifies for one of these alternatives.