In Texas, there are several ways to avoid full probate: small estate affidavit, muniment of title, independent administration, or affidavit of heirship.
Small Estate Affidavit
If a Texas estate's qualified gross value is <$75,000 and there is no will, you can use the small estate process
to settle an estate with almost no court involvement.
To use the small estate process, the following conditions must be met:
- The estate qualifies as "small" and there is no will
- At least 30 days have passed since the death
- The estate is solvent (i.e., the non-exempt assets are worth more than the debts)
- No petition has already been made to the court to officially appoint a personal representative
In determining whether an estate qualifies as "small", you should value assets as of the date of death, and ignore any unsecured debts.
Do not include any assets that would not normally go through probate, such as community property with rights of survivorship,
assets with named beneficiaries (e.g., 401Ks, life insurance policies),
and other standard probate exclusions.
You should also exclude the value of any homestead and family exemptions (see below).
To use the small estate affidavit process:
- Submit a Small Estate Affidavit to the court (see below)
- Use a copy of the court-certified affidavit to take possession of estate assets
- Note that real estate cannot be transferred via small estate affidavit
- Settle the estate in the normal way (pay debts, distribute remaining assets)
There is no particular affidavit form mandated by law, but various courthouses require the use of their particular version, so best to identify the court as per above,
then use whatever form they prefer (see example Small Estate Affidavit Form).
Regardless of the particular form, a small estate affidavit must:
- Show that the required conditions listed above are true (small, no other petition, etc.)
- List all estate assets and debts, identifying assets deemed exempt
- Include the name and address of every heir (specifically, people who will inherit from the estate)
- Include the relevant family history concerning heirship
Be signed by 2 disinterested witnesses, and by each distributee under
Texas intestate succession law,
or the guardians or next of kin for any such distributee who is a minor or legally incapacitated
You will need to get the affidavit notarized before submission.
See TX Estates Code § 205.
Muniment of Title
A Muniment of Title is similar to a Small Estate Affidavit, but has no limit on estate value, and can be used to transfer both
personal and real property.
You can use a Muniment of Title if:
- A valid will exists
- Less than 4 years have passed since the death
- The estate does not owe any debts (other than those secured by a lien on real estate)
To settle an estate via a Muniment of Title:
- Submit to the court an Application for Muniment of Title (see below)
- Schedule a probate hearing to occur after the court-specified waiting period (usually 10 days)
- After the hearing, the court will give you an order admitting the will to probate as a Muniment of Title, which you can use to obtain possession of estate assets
- Note that a Muniment to Title is unique to Texas, and other states will not recognize it, so you cannot use this process to handle out-of-state assets
- Distribute the assets in the normal way, keeping in mind the Family Exemptions mentioned below
Within 180 days, file with the court a sworn affidavit stating the terms of the will
that have been fulfilled and the terms that have not been fulfilled (the court may also require you to file an estate inventory)
Muniment of Title Application
Check with your local court (see below) to determine if they have a preferred application form, or you can create one yourself based on this example
Tarrant County Muniment of Title Form.
The application must state:
- The decedent's name, legal address, and last three driver's license and social security numbers (if assigned)
- Each applicant's name, legal address, and last three driver's license and social security numbers (if assigned)
- The facts of death, including date and place
- The facts that show the given court has jurisdiction (i.e., the decedent lived there)
- An inventory of estate assets and probable value
- The date of the will
- The name, state of residence, and physical address of any executor named in the will
- The name of each witness to the will
- Whether any children were born or adopted by the decedent after the creation of the will, and if so, their names
- That the estate does not owe any unpaid debts, other those secured by a lien on real estate, and that there is no need for administration of the estate
- Whether a decedent's marriage was dissolved after the will was made, and if so, when and from whom
- Whether the state, a governmental agency of the state, or a charitable organization is named in the will
Attach a certified death certificate and the original will to the application.
See TX Estates Code § 257.
If the estate cannot qualify for a Muniment of Title, you can still save significant time and money by applying for an Independent Probate Administration.
You can settle an estate via Independent Administration if
the will specifies that an independent administrator should be used,
or if all distributees agree to such an approach.
To settle an estate via a Independent Administration:
- Submit to the court an Application for Probate via Independent Administration
- Qualify as administrator by obtaining any bond required and get your "Letters of Administration" from the court
- Within 30 days of qualifying, provide notice to creditors
- Within 60 days of the probate order, notify by registered or certified mail, return receipt requested, all inheritors named in the will
- Within 90 days of the probate order, submit a sworn statement to the court of the status of all such notifications (made, waived, not done), as well as an estate inventory
- Submit an estate inventory to the court, including assets and debts
- Upon court approval of the inventory, you may settle the estate in the normal manner (pay debts, distribute assets) without further court interactions
- Optionally file a Closing Report (see TX Estates Code § 405.005)
See TX Estates Code § 402 for statute details on the
independent administration process, and TX Estates Code § 308
for statute details on required notices.
Affidavit of Heirship
Alternately, you can use an Affidavit of Heirship to lay claim to real property
(see TX Estates Code § 203).
This is typically used in the case where there is no will, and is not as strong a procedure as a muniment of title or an independent administration.
The affidavit must be completed by a person who knew the decedent well, but who does not stand to inherit anything.
Once the affidavit has been signed, notarized, and recorded in the deed records of the County,
it links the real estate title to his heirs.
At that point, most title companies and real estate companies will allow the heirs to sell the property.
Texas Affidavit of Heirship Form
Certain property is by default assigned to any surviving spouse or children, regardless of what the will says or
what the estate owes.
A homestead is officially defined as a house, condo, or mobile home owned by the decedent and used as his or her primary residence.
A homestead can include up to 20 acres of land, if the land was owned by the decedent and related to the residential use of the homestead.
If a decedent's homestead was in use at the time of death by a surviving spouse or any children who were under 21, the homestead should not be included in the
estate valuation when determining whether the estate qualifies as "small".
Personal Property Exemptions
Certain personal property is by default set aside for any surviving spouse, minor children, unmarried adult children,
or any adult child who is incapacitated, up to an aggregate net value of $100K:
- Home furnishings and clothing
- Up to $25K in jewelry
- One vehicle per family member
- Provisions for consumption
- Tools, vehicles, and other items used in a trade or profession
- Two firearms
- Farming or ranching vehicles and implements
- Various animals and their supplies
Any such property should not be included in the
estate valuation when determining whether the estate qualifies as "small".
Allowances in Lieu Of Exempt Property
People entitled to exempt property can elect to take the equivalent of the property in some other form if desired (for example, money).
An allowance in lieu of a homestead may not exceed $45,000, and an allowance in lieu of other exempt property may not exceed $30,000.
See TX Estates Code § 353
and TX Property Code § 42.002
for more about family exemptions.
If you are using the small estate process, then the decedent died intestate (i.e., without a will), and
TX Estates Code § 201
will determine who gets what share of the estate.
If estate solvency is uncertain, or there is a reasonable chance of a lawsuit of some kind,
it's probably best to go through formal probate.
You can find the appropriate TX court by selecting the decedent's county on the Texas state website,
or by downloading the Texas court list. Either way,
you can then contact the Probate Court if one exists in the county,
otherwise contacting the County Court. If the estate is contested, the District Court will have jurisdiction.