Small Estate Affidavit Requirements

For those families whose loved one died without a will and had assets less than $75,000.00, not including homestead and exempt property, they are able to file a Distributees Affidavit – Small Estate Affidavit if the following conditions are met:

(1)  30 days have elapsed since the date of the decedent’s death;

(2)  no petition for the appointment of a personal representative is pending or has been granted;

(3)  the value of the estate assets on the date of the affidavit, excluding homestead and exempt property, does not exceed $75,000;

(4)  an affidavit that meets the statutory requirements is filed with the clerk of the court that has control over the estate;

(5)  the judge approves the affidavit; and

(6)  the distributees comply as prescribed by law.

Assets that are counted toward the $75,000.000 threshold include, Exempt Assets: Examples include items such as a vehicle, home furnishings, tools and livestock. Non-Exempt Assets: Assets that are not exempt, such as ordinary bank accounts.

Payable on death (POD) is an arrangement between a bank or credit union and a client that designates beneficiaries to receive all the client’s assets. The immediate transfer of assets is triggered by the death of the client.

The Transfer on death (TOD) designation lets beneficiaries receive assets at the time of the person’s death without going through probate. This designation also lets the account holder or security owner specify the percentage of assets each designated beneficiary receives, which helps the executor distribute the person’s assets after death. With TOD registration, the named beneficiaries have no access to or control over a person’s assets as long as the person is alive.

Payable on death (POD) or transfer on death (TOD) designations, typically are in place in small estates to avoid the probate process. Generally speaking, the Distributees Affidavit – Small Estate Affidavit procedure is used for gaining access to those accounts that had no payable on death or transfer on death designations.

The Distributees Affidavit – Small Estate Affidavit may not be used to transfer title to real property other than the decedent’s homestead. If there is no real property and just other assets, heirs generally utilize a Distributees Affidavit – Small Estate Affidavit.

This process is considerably less time consuming and less costly than a full heirship probate proceeding. You will need to have two persons who have no interest in the decedent’s property and are aware of the family history.

Please note that requirements may vary from county to county, so be sure to check you county's requirements.

Small Estate Affidavit

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Mike Massey JD, MBA, MPA just might be the 195th most interesting person in Texas. He has 4 college degrees and he's working on a 5th:  BBS Accounting; MPA Master's in Professional Accounting; JD Law Degree; MBA Master's in Business Administration; BBS in Biblical Studies (in progress).

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