Small Estates AffidavitTexas Estates Code Chapter 205

By: Heidi Easley, Victoria County ClerkWith Rose Pietsch, Bastrop County Clerk

2018 Texas Association of Counties Probate Academy

OMG – I didn’t take the time to

write my will!

What is a small estate affidavit?

• A Small Estate Affidavit allows a fast track resolution of an estate through probate court. It's a good way to help resolve final estate matters for a deceased person who died without a will and with a "small estate".

• Don’t confuse “fast track” with “easy substitute” for handling a case without a will.

A small estate is one in which the total value of the assets owned by a person who died falls under the dollar limit set by state statutes. The probate code in each state defines what qualifies as a small estate and the filing rules that must be followed.

In Texas:When a decedent had no will and the value of his or her estate is $75,000 or less, the beneficiaries of the estate can file a Small Estate Affidavit (sworn statement) to collect the property without going through the probate process.

Estates Code 205.001

• Entitlement to Estate Without Appointment of Personal Representative

• The distributes of the estate of a decedent who dies intestate are entitled to the decedent’s estate without waiting for the appointment of a personal representative of the estate to the extent that estate assets, excluding homestead and exempt property, exceed the known liabilities of the estates, excluding any liabilities secured by homestead and exempt property, if:

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, excluding homestead and exempt property, does not exceed $75,000;4.) An affidavit that meets the requirements of Section 205.002 is filed with the clerk of the court that has jurisdiction and venue of the estate;5.) The judge approves the affidavit as provided by Section 205.003;6.) The distributees comply with Section 205.004.

Sec. 205.002 Affidavit Requirements

• (a) An affidavit filed under Section 205.001 must:

▫ (1) be sworn by:

(A) two disinterested witnesses;

(B) each distributee of the estate who has legal capacity; and

(C) if warranted by the facts, the natural guardian or next of kin of any minor distributee or the guardian of any other incapacitated distributee;

▫ (2) show the existence of the conditions prescribed by Sec. 205.001(1), (2), and (3); and

▫ (3) include:

(A) a list of all known estate assets and liabilities;

(B) the name and address of each distributee; and

(C) the relevant family history facts concerning heirship that show each distributee’s right to receive estate money or other property or to have any evidence of money, property, or other right of the estate as is determined to exist transferred to the distributee as an heir or assignee.

• (b) A list of all known estate assets under Subsection (a)(3)(A) must indicate which assets the applicant claims are exempt.

Sec. 205.003

Examination and Approval of Affidavit

• The judge shall examine an affidavit filed under Section 205.001. The judge may approve the affidavit if the judge determines that the affidavit conforms to the requirements of this chapter.

Sec. 205.005

Affidavit as Local Government Record

• (a) If the judge approves an affidavit under Section 205.003, the affidavit shall be maintained as a local government record under Subtitle C, Title 6, Local Government Code.

• (b) If the county does not maintain local government records in a manner authorized under Subtitle C, Title 6, Local Government Code, the county clerk shall provide and keep in the clerk's office an appropriate book labeled "Small Estates" in which the clerk shall, on payment of the legal recording fee, record each affidavit filed under this chapter. The small estates book must contain an accurate index that shows the decedent's name and references to any land involved.

What happens now…

• Once the judge has approved the affidavit, the documents and order is scanned into the case.

• A certified copy is issued to the filing party. This certified copy is used to transfer property. (A majority of the time it will relate to a bank account.)

• A certified copy should be filed in official public records of the county in which the decendenthad a homestead.

Clerk’s Processes

• Accept the filing and associated fees;

• May or may not be filed via e-filing;

• File mark documents (make sure they have completed the Civil Case Information Sheet);

• Enter the case into your case management system;

• Enter case disposition information once judge has signed order;

• Issue certified copies of the Small Estate Affidavit;

• Record the certified copy in your public records.

How can you help?

Don’t offer legal advice!

It’s always best to advise them to speak with an attorney.

Refer people to Texaslawhelp.org

Helpful Resources

• Texaslawhelp.org

• In the search bar – type in “probate without a will”

• Google

• “small estate affidavit Texas”

• Many websites have information, including examples and checklists

• Texas Association of Counties

• County Clerk Procedural Manual

• Listserve

• Handouts:

▫ Estates Code – Chapter 205 Small Estate Affidavit

▫ Small Estate Affidavit Checklist (from Tom Green County via Google Search)

Chapter 257

Estates Code

With excerpts by Rose Pietsch, Bastrop County Clerk andLinda Haney, Ector County Clerk

There are 2 reasons a probate case can be filed as a muniment of title: If there are NO debts owed by the estate (this includes medicaid claims)

other than any debt secured by a lien on real estate.

If there is no administration necessary.

While most probate courts require an attorney to file to probate cases, a small number of courts will allow individuals to file a case. This usually only occurs when there is only 1 heir

Always consult your judges before making an official policy to accept from private individuals

It is better to err on the side of precaution due to the complex legal issues that could arise

The case will be presented through Efile Texas* A Civil Case Information Sheet must be completed.

Verify party information

Verify payment information

Determine if all necessary documents have been presented for filing

You may have to remind the filer that the Original Will must be brought in within 3 days after the e-filing of the application.

*unless the case has been approved to be filed pro se

§257.051 Contents of Application Generally:

(a) An application for the probate of a will as a muniment of title must state and aver the following to the extent each is known to the applicant or can, with reasonable dilligince, be ascertained by the applicant:

(1) each applicant’s name and domicile:

(1-a) the last three numbers of each applicant’s driver’s license number and social security number;

(2) the testator’s name, domicile, and if known, age, on the date of the testator’s death;

(2-a) the last three numbers of the testator’s driver’s license number and social security number;

(3) the fact, date, and place of the testator’s death;

(4) facts showing that the court with which the application is filed has venue;

(5) that the testator owned property, including a statement generally describing the property and the property’s probably value;

(6) the date of the will;

(7) the name, state of residence, and physical address where service can be had of the executor named in the will;

(8) the name of each subscribing witness to the will, if any;(9) whether one or more children born to or adopted by the testator after the testator executed the will survived the testator and, if so, the name of each of those children;(10) that the testator’s estate does not owe an unpaid debt, other than any debt secured by a lien on real estate, or that for another reason there is no necessity for administration of the estate;(11) whether a marriage of the testator was ever dissolved after the will was made and, if so, when and from whom; and(12) whether the state, a governmental agency of the state, or a charitable organization is named in the will as a devisee.

(b) If an applicant does not state or aver any matter required by Subsection (a) in the application, the application must state the reason the matter is not stated and averred.

§257.052 Filing of Will with Application Generally Required

(a) An applicant for the probate of a will as a muniment of title shall file the will with the application if the will is in the applicant’s control;

(b) A will filed under Subsection (a) must remain in the custody of the county clerk unless removed from the clerk’s custody by court order.

Under Section 257.051, if an applicant for the probate of a will as a muniment of title cannot produce the will in court, the application must state:

1) The reason the will cannot be produced;

2) The contents of the will, to the extent known; and

3) The name and address, if known, whether the person is an adult or minor, and the relationship to the testator, if any, of:

A. Each devisee;

B. Each person who would inherit as an heir of the testator in the absence of a valid will; and

C. In the case of partial intestacy each heir of the testator.

Calculate the hearing date – The first Monday following the expiration of 10 days from the posting of the

citation, after 10:00 a.m.

Once application has been accepted into your case management system: Issue your citation (EC 51.001-51.056 )

Forward to Sheriff or Constable for posting and any necessary service; Citations in Probate matters may not be served by a civil process server. They must be

served by a Sheriff or Constable.

Draft and send a setting letter to the attorney of record indicating the hearing date, time and location.

The Court will conduct the hearing to establish if the will should be admitted to probate as a muniment of title.

Proof Required as set forth in Estates Code 257.054

When the judge has determined the will should be admitted to probate as a muniment of title, an order is entered. The order is sufficient legal authority for the named distributees to receive the assets of the estate to which they are entitled. The distributees may treat the property as their own.

Following the Court Hearing: The Clerk will enter all case dispositions into the case management system.

Certified copies of the Order Admitting the Will to Probate as a Muniment of Title and the Last Will and Testament of the Decedent are issued;

No Letters or Administration of the Estate are necessary;

The heirs of the estate become the owners of their portions;

No bond is required.

Estates Code 257.103

Unless waived by the court, the applicant for probate of the will must file with the court clerk a sworn affidavit stating specifically the terms of the will that have been fulfilled and the terms of the will that have been unfulfilled. This affidavit must be filed before the 181st day after the will is admitted to probate as a muniment of title. Failure of the applicant to file such affidavit shall not otherwise affect title to property passing under the terms of the will.

(b) Each month the clerk of each court having probate jurisdiction shall prepare an abstract of each application for probate of a will, administration of a decedent's estate, or determination of heirship, and each affidavit under Chapter 205, Estates Code, that is filed in the month with a court served by the clerk. The clerk shall file each abstract with the voter registrar and the secretary of state not later than the 10th day of the month following the month in which the abstract is prepared.

Estates Code

Local Government Code

Government Code

Rules of Civil Procedure

Victoria County Courts at Law website http://www.vctx.org/pdf/ProbatePolicy.pdf

Supreme Court of Texas website http://www.txcourts.gov/supreme

Office of Court Administration website http://www.txcourts.gov/

They didWHAT?

Leona Helmsley, the

“Queen of Mean”

hotelier, left

instructions in her

will to establish a $12

million trust for her

pet Maltese dog.

Florida heiress Gail Posner passed away in 2010,leaving her mansion and a $3 million trust fund for

her dogs Conchita, April Maria, and Lucia.