In Texas, there are several ways to avoid full probate: small estate affidavit, muniment of title, independent administration, or affidavit of heirship.
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:
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 Personal Property and Homestead Exemptions.
To use the small estate affidavit process:
There is no particular affidavit form mandated by law, but some courthouses require the use of their particular version, so best to identify the court as per below, then use whatever form they prefer.
Here is an example Small Estate Affidavit Form, and note that you may be able to attach an EstateExec Inventory Report rather than manually filling in the inventory table.
Regardless of the particular form, a small estate affidavit must:
You will need to get the affidavit notarized before submission.
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:
To settle an estate via a Muniment of Title:
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:
Attach a certified death certificate and the original will to the application.
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:
See TX Estates Code § 402 for statute details on the independent administration process, and TX Estates Code § 308 for statute details on required notices.
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
Before paying any debts or making any distributions, be sure to account for any TX Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Estate debts have priority over most distributions in turn, so you should arrange to have all debts resolved before distributing assets. Unpaid estate creditors have the right to sue heirs for the value of any distributions received using the approaches described on this page.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
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.
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.
See also General Probate.