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County Court at Law 2

SMALL STATE AFFIDAVITS

Texas Estates Code Chapter 205 dealing with Small Estate Affidavits generates much confusion.  Banks, insurance companies, and title companies often tell individuals to file a Small Estate Affidavit (SEA) without considering the limited circumstances in which an SEA can be granted.  Individuals then fill out a form without reading the statute and without understanding the Texas intestacy law.  They pay a filing fee and expect approval.  But many SEAs are denied for problems that cannot be corrected, and the denied applicants lose their filing fees.  Many other SEAs cannot be approved without amendment. 

Before filing an SEA, carefully review this checklist and the attached charts regarding Texas rules for who takes what property when the decedent didn’t have a will (rules for descent and distribution). See also the requirements in Chapter 205 of the Texas Estates Code as well as the rules for descent and distribution in Chapter 201.  To prepare an SEA that the Court can approve, you will need to understand all of the rules and requirements.  The complexity of the Code poses many pitfalls for non-lawyers attempting to comply with the requirements.  An attorney’s assistance in drafting a SEA may prevent the denial of an Affidavit that might have been approved if the Affidavit had been prepared correctly.

This checklist explains the basics, but the list does not cover everything included in Chapter 201 and 205.

  1. Use the most recent SEA form on the Court’s website. To increase the chances that an SEA will include all necessary information, use the form available on the Court’s website.  If necessary, include extra pages to provide additional information.  The SEA must be completed by persons who have actual knowledge of the stated facts.    
  2. Cannot be filed within 30 days of Decedent’s death.  Wait long enough to make sure you have ALL bills.  
  3. County where Decedent resided.  An SEA should be filed in the county where the Decedent resided if Decedent had a domicile or fixed place of residence in Texas.  If that’s not Montgomery County, add facts to support venue in Montgomery County.  Remember granting an SEA is in the Court’s discretion; it is unusual for the Court to approve an SEA for a Decedent who did not have a fixed place of residence in Montgomery County.  
  4. No Will.  By statute, an SEA cannot be used where Decedent left a will.  Applicants must swear that the Decedent died without a will.  
  5. No Administration.  An SEA cannot be approved if a petition for the appointment of a personal representative is pending or has been granted or if it appears that an administration is needed.  
  6. Decedent’s Assets.
    1. List everything.  The SEA must list of Decedent’s known estate assets – not just some of them.  Assets are any property owned that has monetary value, including cash or bank accounts, vehicles, household furnishings and real property.
    2. Indicate value.  Indicate the value of each asset as precisely as possible.  An SEA cannot be approved with any asset of “unknown” value.
    3. Limited estate.  The SEA must show that the total assets of the estate are less than $50,000 or less, not including the homestead (see below) and exempt property.
    4. Provide sufficient detail.  Indicate the value of each asset as precisely as possible, describing the property with sufficient detail so that it is clear exactly what property is being transferred by Affidavit.  For example, give VIN numbers for cars and give the last four digits for any account numbers along with the name of the bank or entity holding the funds.
    5. If Decedent was married at the date of death:
      1. State whether each asset was Decedent’s community property or Decedent’s separate property.
      2. For each asset, give the facts that explain why the asset was community or separate property.
    6. Exempt property.  If you are claiming that an asset is exempt property, allege the exempt status in the “additional information” column on the SEA form.
    7. Real property.  The only real property that can be transferred by an SEA is Decedent’s homestead property.  If this is the case, the SEA must include sufficient facts to support the homestead exemption and must also include the legal description and street address.
  7. Decedent’s Debts / Liabilities.
    1. List everything.  The SEA must list all of the Decedent’s debts and other liabilities, including all credit card balances, doctor’s bills, utility bills, etc. – owed by Decedent and not paid off.  As one of the liabilities, the SEA must list any attorney’s fees to be paid for preparation of the Affidavit.
    2. Provide sufficient 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.
  8. Solvent.  The total of the assets (not including the homestead and exempt property) must exceed the total known liabilities, not including liabilities secured by homestead and exempt property.  If they do not, the SEA must be denied. (Distributees can pay off enough debts that the assets exceed the remaining liabilities).      
  9.  Medicaid.  The SEA must indicate whether the Decedent applied for and received Medicaid benefits on or after March 1, 2005.  If so, Applicant 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 https://www.dads.state.tx.us/services/estate_recovery/index.html.
  10. Family history.  The SEA must state the facts about Decedent’s marital and family history in sufficient detail that it is clear who inherits Decedent’s property and the shares of those heirs under Texas law.  The Court’s approved SEA form will lead you through the appropriate questions, except for relatively unusual situations, as long as you fill out the form carefully and completely.
  11. List all heirs.  After you have filled out section K of the form completely, figure out the heirs and list them in section L of the form. 
    1. To figure out who the heirs are, look at these charts, which summarize Texas rules regarding descent and distribution based on the Texas Estates Code Chapter 201.  Decide which of the four charts applies to Decedent, and then look at everything included in the chart.
      1. Married Person with Child[ren] or Other Descendants
      2. Married Person with No Child or Descendants
      3. Unmarried Person with Child[ren] or Other Descendants
      4. Unmarried Person with No Child or Descendants
    2. In section L, list the name, address, phone number, and email address of every Distributee (heir) of Decedent’s estate.  If Decedent was married, you must list heirs for type of property, even if you don’t think there was any property of a particular type.
  12. Minor heirs.  The Court will not approve an SEA with a minor heir unless all assets that the minor heir(s) will inherit can be placed in the registry of the Court until the heir turns 18.
  13.  List the correct inheritance shares.  In “L” of the Court’s approved SEA form, you must list the shares of each Distributee in every possible type of property.  Always fill out the two “separate property” columns.  Always fill out the “community property” column if the Decedent was married when he or she died.  To figure out shares, see the charts.  
    1. If Decedent was married at the date of death, the SEA must state the shares 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 not sufficient to say that there was no separate property or no separate real property.
    2. If Decedent was single at the date of death, there is no community property.  Put “NA” in the community property column.
  14. Signed and sworn to by all Distributees. 
    1. 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 Court’s SEA form (at the top of page 7 on the pdf form).
    2. Every Distributee who has legal capacity must sign and swear to the Affidavit before a notary.
    3. Is there is a minor or otherwise incapacitated Distributee?  If warranted by the facts, the natural guardian or next of kin of any minor Distributee or the guardian of any other incapacitated Distributee may sign and swear to the Affidavit on behalf of the minor or otherwise incapacitated Distributee. The fact that someone is signing and swearing on behalf of someone else must be clear from the signature.
      1. For a minor, if Section K of the affidavit does not show why the person has the authority to sign on the minor’s behalf, provide proof that the person signing for the minor is the minor’s natural guardian or next of kin.
      2. For an otherwise incapacitated Distributee, provide letters of guardianship as proof that the person is signing has authority to do so.
    4. Is there a Distributee who survived the Decedent, but who is now deceased?  If no personal representative has been appointed for ta now-deceased Distributee, you cannot use the Small Estate Affidavit probate procedure and must file an Application to Determine Heirship.  If a personal representative has been appointed, the personal representative can sign on behalf of now-deceased Distributee’s estate.  In that case, the fact that the 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 the authority to do so.
    5. Is there a missing Distributee?  If you do not know where to find a Distributee, you cannot use the Small Estate Affidavit probate procedure and must file an Application to Determine Heirship.  Note that an Applicant for determination of heirship must be represented by an attorney. 
  15. Sworn to by two disinterested witnesses.   Two disinterested witnesses must each sign and swear to the Affidavit before a notary.  These witnesses must be able to swear to the facts included in the SEA, not only the family history facts.  Disinterested witnesses are witnesses who have no interest in the Decedent’s estate and who are not related to Decedent under the laws of descent and distribution of the State of Texas.  As noted in the boxed, italicized statement on the the form above each disinterested witness’s signature, these witnesses-along with the Distributees- 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.
  16. Possible hearing.  The Court usually does not require hearing on SEA applications, but in some circumstances the Court may require a hearing before an SEA will be approved.  If a hearing is needed, the Court will contact you to set a hearing. 
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