Texans who die with modest means may be able to have their property transferred if they have no Will and if certain other requirements are met. One of the main reasons for having a Will or a Trust is to transfer property of the deceased (hereinafter the “decedent”). However, Texas permits Small Estates Affidavit so that property can be transferred if certain conditions are met including, but not limited to, the following:

  • Decedent died without a Will and thirty days have elapsed since the date of death
  • Decedent had less than $75,000 in assets (excluding homestead and other exempt property) 
  • The homestead is the only real property of the decedent (it has to be the homestead of the survivors) at the time of decedent’s death
  • No need for a legal process to pay debts, settle claims or distribute property
  • All heirs (or someone with authority to sign on their behalf) must sign the affidavit along with two disinterested witnesses before a notary public
  • Assets must exceed liabilities 

Although there are other requirements, this is a relatively simple way to give authority to transfer property for decedents who failed to plan and who have a modest amount of assets. The probate process in Texas to transfer property by Will is often not difficult. However, there is a delay in transferring property since court approval that the Will is valid is necessary – not to mention legal fees and court costs. Furthermore, although Trusts avoid probate, it is often too expensive for those with modest means to create. Notwithstanding the immediately preceding sentences, it is generally advisable to have a Will or a Trust so that your assets can be transferred to whom you want (not necessarily to all heirs at law as required by the Small Estates Affidavit), the way you want (sometimes a beneficiary may be a minor or be disabled or be a spendthrift or have creditor issues or have marital problems or be on public benefits or have an addiction issue, etc. – a Will or Trust can give the protection you desire) without delay (a Trust usually has less delay, but costs should be considered). Nonetheless, the Small Estates Affidavit (which must also be approved by the court although there is generally no need for court appearance) is an option to transfer property (if the assets are less than $75,000 excluding homestead and other exempt resources) of a decedent to his or her heirs. So, where there is no Will, there is sometimes a way.

If interested in learning more, consider attending our next free “Estate Planning Essentials” workshop by calling us at (214) 720-0102 or sign up by clicking here.

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