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Is Probate Necessary for Mom or Dad’s Small Estate?

Posted by Chris Peterson | Sep 10, 2014 | 0 Comments

Is Probate Necessary for Mom or Dad's Small Estate?

17623457_mlWe've devoted several articles lately to distinguishing which assets are considered part of an estate after a person passes away and how to avoid probate for some or all of your assets prior to death. Those questions come up frequently regarding large estates. Today, we are going to switch gears and address smaller estates, specifically whether probate is necessary in every case.

Probate is not necessary in every estate

Texas has special rules for probating small estates. Obviously, it doesn't make sense for estates with few assets go through the same lengthy probate process as larger estates. Under Texas law, if the deceased person didn't own any real estate other than a home and if the estate contains less than $50,000 in assets, the administrator of the estate can submit a small estate affidavit to the probate court as a substitute for full probate.

A small estate affidavit won't do if you need documents authorizing estate administration

A surviving spouse or other family member, such as an adult child of the deceased, can file a small estate affidavit. The responsible party does not have to file the will for probate, but due to the limited involvement with the probate court, the court will not issue letters testamentary or letters of administration. If you need court documents to prove you have authority to handle estate business, a small estate process won't work for you.

What does a small estate affidavit need to say?

A small estate affidavit may be submitted by a responsible party directly to the probate court and must state that certain conditions exist which makes the estate eligible for small estate treatment. In addition to legal language needed to establish jurisdiction and venue, the small estate affidavit should state that:

  • The estate does not exceed $50,000 in value, other than a homestead and other limited exemptions, and
  • The person making the affidavit is legally entitled to the assets in the estate

As with any affidavit, be sure the small estate affidavit states the truth because you could be held liable for perjury if the statements contained in it turn out to be untrue.

Who must sign the small estate affidavit?

In addition to the responsible party, the small estate affidavit must be signed and attested to by any other survivors who may be entitled to inherit a portion of the estate, along with two witnesses who do not stand to inherit and are not otherwise financially interested in the estate of the deceased.

Contact an experienced probate litigation attorney to facilitate the small estate process

If you need help figuring out whether a small estate affidavit will suffice for your loved one's estate, call an experienced probate administration and litigation attorney at Peterson Law Group. Our experienced Conroe, Texas attorneys guide clients through various probate proceedings, step by step. Call us at 936-337-4681 or 979-703-7014 or contact us online to make an appointment today.

About the Author

Chris Peterson

Chris Peterson is the owner of Peterson Law Group. He practices primarily in the areas of wills, trusts and estate planning; probate and trust administration; elder law; and business law. Chris is also the owner of Brazos 1031 Exchange Company.


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