This article explains what information must be included in a small estate affidavit, and explains TexasLawHelp.org's small estate affidavit form section by section.
What information must be included in a small estate affidavit?
Under Texas law, a small estate affidavit must include the following information. Each item below corresponds to a section of the form (which is linked to here).
A. The name of, and facts about, the decedent;
B. That 30 days have passed since the decedent died;
C. The county where the decedent resided;
D. That the decedent died without a will;
E. That no administration is necessary;
F. The value of estate;
G. That the estate is solvent;
H. Whether the decedent applied for and received Medicaid benefits (on or after 3/1/2005);
I. The decedent’s estate assets;
J. The decedent’s debts and liabilities.
K. The decedent's family history.
L. A list of all heirs and distributees;
M. A sworn signature from each distributee; and
N. A sworn signature from two disinterested witnesses.
Where do I put the decedent's name, residence, and date of death in the small estate affidavit?
In Section A of the Small Estate Affidavit form, print the name of the decedent, date of death, and county where the decedent died. If the decedent had any aliases (that is, went by more than one name), also list the aliases after the decedent’s legal name as “a.k.a.'s” in the form.
Have 30 days passed since the death?
Section B of the Small Estate Affidavit form specifies that 30 days have passed since decedent’s death.
There is nothing for you to complete in this section of TexasLawHelp.org's small estate affidavit form, but you cannot file a valid Small Estate Affidavit until 30 days have passed since the decedent died. See Texas Estates Code chapter 205.001.
What county did the decedent live in?
In Section C of the Small Estate Affidavit form, fill in the county where the decedent was a resident of and domiciled in. Usually this is the county where you are filing the affidavit.
Note: If the decedent was not a resident of the county where you plan to file the affidavit, talk with a lawyer. The affidavit must include facts supporting venue in the county where it is filed.
Did the decedent die without a will?
In Section D of the Small Estate Affidavit form, you affirm that the decedent did not leave a valid will. If the decedent left a valid will, do not use these instructions; you will need to use a different probate procedure.
There is nothing for you to complete in Section D of TexasLawHelp.org's small estate affidavit form—but you cannot file a valid Small Estate Affidavit if the decedent left a will.
Is an estate administration necessary?
In Section E of the Small Estate Affidavit form, you confirm that no administration is necessary. Do not use these instructions if administration is pending or has been granted in decedent’s estate OR if administration appears necessary. If there is any question that administration is necessary, talk to a lawyer.
There is nothing for you to complete in Section E of TexasLawHelp.org's small estate affidavit form—but you cannot file a small estate affidavit if an estate administration is needed (or ongoing).
Was the estate's value $75,000 or less?
In Section F of the Small Estate Affidavit form you affirm that the total value of decedent’s estate assets on the date the affidavit is signed—not including homestead and exempt property—is $75,000.00 or less.
There is nothing for you to complete in Section F of TexasLawHelp.org's small estate affidavit form—but you cannot file a Small Estate Affidavit if the value of the estate administration is more than $75,000.
Was the estate solvent?
In Section G of the Small Estate Affidavit form, you confirm that the estate was solvent. That means that the total of estate assets—not including homestead and exempt property—must be greater than the total of known liabilities (not including debts secured by homestead and exempt property). If the estate is not solvent, don't use these instructions or this form. Distributees, however, can pay off enough debts so that the assets exceed the remaining liabilities.
There is nothing for you to complete in Section G of TexasLawHelp.org's small estate affidavit form—but you cannot file a small estate affidavit if the estate is insolvent.
Did the decedent get, or apply for, Medicaid?
In Section H of the Small Estate Affidavit form, you check a box concerning whether the decedent applied for and received Medicaid benefits on or after 3/1/2005.
If the decedent did apply for and receive Medicaid benefits on or after 3/1/2005, you must either:
(1) list as a liability the amount owed to Medicaid; or
(2) file a Medicaid Estate Recovery Program (MERP) certification that decedent’s estate is not subject to a MERP claim; or
(3) include additional information proving that a MERP claim will not be filed.
For more information, see Your Guide to the Medicaid Estate Recovery Program.
Have you listed the decedent's estate assets?
In Section I of the Small Estate Affidavit form you must list all of decedent’s known estate assets.
The affidavit must list all of decedent’s known estate assets—not just some of them. List everything. Assets are any property owned that has monetary value, including cash or bank accounts, real estate, vehicles, and household furnishings.
Indicate value. Indicate the value of each asset as precisely as possible, using values at the time the affidavit is signed. An SEA can’t be approved with any asset of “unknown value” because it is impossible to know if total assets are $75,000 or less, and it might be impossible to know if the estate is solvent. With paperless accounts, finding some values can be challenging. If a financial institution will not provide a precise value, you might be able to get the institution to provide an approximate amount or a range that would be sufficient to allow an SEA to be approved. Texas Estates Code Chapter 153 also provides a way to ask for a court order to get access to account information in appropriate situations.
Limited estate. The SEA form must show that the total estate assets are $75,000 or less, not including the homestead and exempt property.
Provide sufficient detail. Describe each asset with enough detail to make it clear exactly what property is being transferred by affidavit. For example, give VIN numbers for cars and give the last four digits of any account numbers, along with the name of bank or other entity holding the funds.
Was the decedent married? If the decedent was married at the date of death, you must also add the following in the “additional information” column on the SEA form: State whether each asset was decedent’s community property or decedent’s separate property. See definitions on the form.
For each asset, give the facts that explain why the asset was community or separate property.
Note: For real property, indicate the date the real property was acquired, in addition to other facts.
For each asset that was community property, indicate in the “additional information” column the total value of the asset. List the value of decedent’s interest in the “value” column.
Exempt property. If decedent is survived by a spouse, minor children, or unmarried adult children who lived with decedent, you should consider which assets are “exempt.” If you claim any assets are exempt, you must indicate which assets you claim as exempt in the “additional information” column in the chart in Section “I” of the SEA form.
Identifying which property is “exempt property” is complicated. Talk with a lawyer if you are listing any property as exempt or if you have questions.
Exempt assets are those that are exempt from forced execution under Chapter 42 of the Texas Property Code and that would be eligible to be set aside under Texas Estates Code Section 353.051 if decedent’s estate were being administered.
Exempt assets include, for example, home furnishings, farm animals, and some other property, as well as decedent’s pension benefits and IRAs. Insurance benefits are also exempt.
Real property: homestead to homestead. The only real property that can be transferred by an SEA is decedent’s homestead property. Even then, real property can’t be transferred by an SEA unless the real property will be inherited only by person(s) homesteading with the decedent at the time decedent died—decedent’s surviving spouse and/or minor child(ren) who resided on property with decedent. If this is the case, the SEA must include sufficient facts to support the homestead exemption and must also include the street address of the property and, if possible, the legal description.
Have you listed the decedent's estate debts and other liabilities?
In Section J of the Small Estate Affidavit form you must list all of decedent’s known debts and other liabilities.
List everything. The SEA must list all of decedent’s existing debts and other liabilities, including all credit card balances, doctor or hospital bills, utility bills, etc.—anything owed by decedent or decedent’s estate and not paid off as of the date the SEA will be signed. The SEA must list any attorney’s fees paid or to be paid for preparation of the SEA. If attorney’s fees are not listed as an estate liability, whoever paid the fees is responsible for those fees; the SEA will not have the estate reimburse that person for those fees. If there are no debts or liabilities, indicate “none.” This section can’t be left blank!
Provide enough detail. Indicate the amount of each liability as precisely as possible, describing the debt or other liability with sufficient detail so that it is clear who the creditor is. Also indicate at least the last four digits of any known account numbers.
What information about family history goes in the small estate affidavit?
In Section K of the Small Estate Affidavit form you fill out the decedent's family history.
The affidavit must state the facts about decedent’s marital and family history in enough detail to show both
- who inherits decedent’s property, and
- the shares the heirs receive under Texas law.
As long as you fill out the form carefully and completely, Section K of the form will lead you through the appropriate questions, except for relatively unusual situations. Talk with a lawyer if you have any questions.
Have you listed all the heirs and distributees?
In Section L of the Small Estate Affidavit form you list all heirs/distributees.
After you have filled out Section K (family history) of the form completely, figure out who the heirs are under Texas law and list all of the heirs in Section L of the form.
Decide which of the following four charts applies to the decedent, and then look at everything included in that chart:
- Married Person with Child[ren] or Other Descendants
- Married Person with No Child or Descendant
- Unmarried Person with Child[ren] or Other Descendants
- Unmarried Person with No Child or Descendant.
List the name, address, phone number, and email address of every heir/distributee of decedent’s estate. You must list heirs for every type of property, even if you don’t think decedent owned property of a particular type.
Note: If any heir died after the decedent, contact the court. If no personal representative has been appointed for a now-deceased heir, you can’t use the Small Estate Affidavit probate procedure. Instead, you must file an Application to Determine Heirship. If a personal representative for the now-deceased heir has been appointed, and you may use the small estate affidavit, ask the court if there are any local rules or procedures that impact your filing. Also talk with a lawyer if you have any questions.
Is there a minor heir?
The court may not approve an SEA with a minor heir unless all estate assets the minor heir(s) will inherit can be placed in the registry of the Court until the heir turns 18. Talk with a lawyer if there is a minor heir in your case.
List correct inheritance shares. In Section L of the small estate affidavit form, you must list the shares of each distributee in every possible type of property. In every SEA, fill out both “separate property” columns—even if you did not list any real property. If decedent was married when he or she died, you must also fill out the “community property” column. To figure out shares, see the Texas Descent and Distribution Chart of this toolkit.
If decedent was married at the date of death, the affidavit must state the shares of each distributee in all three types of property: separate personal property, separate real property, and decedent’s share of the community property. (The surviving spouse will retain his or her own share of the community property.) It is never sufficient to say that there was no separate property or no separate real property.
If decedent was single at the date of death, there is no community property. Put “NA” in the community property column—but always fill out both separate property columns.
Have all distributes signed the affdavit?
Section M of the Small Estate Affidavit form is where all distributees sign and swear to the truth of the information in the affidavit.
If you need more than one signature page, use as many signature pages as needed, but note that every signature page must include all the italicized, boxed statements regarding what the distributees are swearing or affirming, what the distributees are requesting, and what those who sign the affidavit could be liable for. See the italicized paragraphs in the box above the distributees’ signature lines on the Small Estate Affidavit form.
Every distributee who has legal capacity must sign and swear to the affidavit before a notary.
Is there a minor or otherwise incapacitated distributee?
It’s a good idea to talk with a lawyer if there is a minor or incapacitated distributee.
For a minor, show why the person has the authority to sign on the minor’s behalf. Depending on the circumstances, the following people may sign for a minor distributee:
- a natural parent of the minor;
- the court-appointed guardian with a copy of letters of guardianship attached; or
- the court-appointed managing conservator with the court order appointing the conservator attached.
For an otherwise incapacitated distributee, provide letters of guardianship as proof that the person signing has authority to do so.
Note: The fact that someone is signing and swearing on behalf of someone else must be clear from the signature. (For example, “Sally Jones as parent of Sam Jones, a minor.”).
Is there a distributee who survived decedent, but who is now deceased?
In this case, you may use the SEA only if a personal representative has been appointed for a now-deceased heir. The personal representative can sign on behalf of the now-deceased heir’s estate. The fact that personal representative is signing on behalf of the estate must be clear from the signature. In addition, you must provide Letters Testamentary or Letters of Administration as proof that the person signing has authority to do so.
Is there a missing heir?
If you do not know where to find an heir, you can’t use the Small Estate Affidavit and must file an Application to Determine Heirship. An applicant for determination of heirship must be represented by a lawyer.
Have two disinterested witnesses signed the affidavit?
Section N of the Small Estate Affidavit form is where two disinterested witnesses must each sign and swear to the affidavit before a notary.
These witnesses must be able to swear to all of the facts included in the small estate affidavit form (not just the family history facts). Disinterested witnesses are witnesses who have no interest in decedent’s estate and who do not inherit from decedent under the laws of descent and distribution of the State of Texas. As noted in the boxed, italicized statement on the form above each disinterested witness’s signature, these witnesses—along with the distributees/heirs—are liable for any damage or loss to any person that arises from a payment, delivery, transfer, or issuance made in reliance on the affidavit.
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