If someone dies without a will and certain specific criteria are met, then a  small estate affidavit can be used to take care of an estate. You can still apply to the court to probate an estate without a will, but it’s usually much more time consuming and expensive to do so. So if a small estate affidavit can be used instead, then that is almost always the best way to handle the remaining estate assets.

To be able to file a small estate affidavit, ALL of the following must be true:

1) The decedent did not have a will.

2) The decedent’s total assets are not worth more than $75,000. However, this does not include their homestead (if they had one) and other exempt property as defined by Chapter 42 of the Texas Property Code.

3) If there is any real property only homestead property can be transferred by a small estate affidavit. And even if the property is homestead, it can only be transferred by a small estate affidavit if it will be inherited only by a person or persons homesteading with the decedent at the time the decedent died.

4) No one has already filed an application to be appointed as the personal representative of the estate.

5) The total assets must be worth more than the debts.

6) All of the heirs must be able to be found, and all of the heirs must be willing to sign the affidavit.

7) Two disinterested witnesses who know enough details about the decedent’s history will need to be willing and able to sign the affidavit also.

The affidavit must list the assets and liabilities with enough detail or the court will not accept it. Likewise, the names and contact information for each heir and the relevant family history must be included. The court needs this information in order to follow the state’s very strict rules for where assets go if someone dies without a will.

After the affidavit is completed and signed by all the right people, then it is filed with the probate court in the county in which the decedent was living at the time of their death. Depending on how well the affidavit was filled out and on the particular facts and circumstances, the judge may ask for a hearing to help determine whether the affidavit will be approved or not.

If the small estate affidavit is approved by the court, then certified copies of the affidavit can be used by the heirs to collect and distribute the various assets in the estate.