Texas rules for small estates during probate

4 min read

Do you qualify for the small estate affidavit option in Texas?

  • Texas law offers an expedited path through probate for estates that meet two criteria: They are valued below $75,000 and there is no will.

  • Non-probate assets are not included in the $75,000 threshold for small estates.

  • Since Texas is a community property states, real estate may pass to a beneficiary outside of probate—which is typically the largest asset a person owns.

  • You can file a small estate affidavit as soon as 30 days after your loved one's death to settle your loved one's affairs without court supervision.

Like many states, Texas allows you to take a shorter route through probate if your loved one's estate is below a certain value threshold. In Texas, that value is $75,000.

Unlike other states, however, Texas has an additional requirement to qualify as a small estate: Your loved one must not have left a will. Since a majority of American die without writing a will, the small estate option for probate is a viable one for many families.

But if the estate meets these two requirements, instead of spending months or years in probate, you can submit a Small Estate Affidavit to transfer your loved one's assets to the heirs who are inheriting them.

How do you determine if the value is below $75,000? Keep in mind that some valuable assets can bypass probate and are not calculated in this value (including, in many cases, real estate—since Texas is a community property state).

Determining the value of the estate

When you calculate estate value, you are only including assets that will go through probate. Non-probate assets—such as life insurance policies, payable-on-death accounts, survivor’s benefits, joint tenancy property, and community property—are not part of the valuation.

What must go through probate is cash, stocks and bonds, personal belongings, and property that doesn’t have survivorship. (Since Texas is a community property state, in general spouses are considered to have joint right of survivorship, meaning any property acquired during the marriage is inherited by the surviving spouse.)

Having a professional appraiser evaluate your loved one’s belongings to establish fair market value will make sure you have all the detailed information you need in regard to the estate’s worth.

If your loved one did not leave a will and the estate’s assets are valued below $75,000, then by Texas law full probate isn’t necessary.

That amount is necessary not only in deducing whether probate is necessary, but in making sure there are enough in assets to cover any potential creditors. When someone passes away, creditors have a right to try to collect on any debts and an estate that hasn’t been professionally and properly appraised could run the risk of fraud charges.

Should anyone question the worth of the estate, you’ll have the appraisal paperwork to prove the amount is what you say it is at the time of your loved one’s death.

In addition to the non-probate assets already discussed, there are other assets that do not count toward the value of the estate. For example, the homestead—a residential structure that is owned (or partially owned) and is a main residence—is exempt. You'll need to have a Texas-issued ID card that matches the address of the homestead in question for this exemption to be used.

These exemptions also extend to those who passed away at 65 or older (their spouse’s homestead is exempt), those with disabilities who qualify for Social Security payments, and spouses of veterans who were killed in the line of duty.  

If the estate is under the threshold

If your loved one did not leave a will and the estate's assets are valued below $75,000, then by Texas law full probate isn’t necessary. In these cases, the executor or beneficiaries just need a small estate affidavit in order to collect assets. You can file the affidavit as soon as 30 days after your loved one's death.

Keep in mind, the only people who can file a small estate affidavit in Texas are those who would normally inherit under the state laws for estates without a will, also known as intestate laws: a spouse, an adult child, or another next of kin, for instance.

Included in the affidavit will be a list of all assets as well as debts, a list of assets that you claim are exempt, and names and contact information of each heir, as well as their relationship to the person who has passed away.

This final piece of the affidavit is to ensure that what you claim is yours is actually yours and there’s no dispute over this claim among the other heirs. 

The affidavit must then be signed by each heir and two witnesses who aren’t in line to inherit anything. Once the probate judge approves the affidavit, and the institution that’s holding your inherited asset of the estate receives it (along with a copy of the death certificate), the asset will be yours.

It's important to remember that you'll still need to contact creditors and pay any debts the estate owes, and in general, settle your loved one's financial and legal affairs. It just means you can do it without court supervision, so that you can honor your loved one by settling their affairs quickly and effectively.

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