What Is A Small Estate Affidavit Proceeding And What Does It Cost?

I have prepared a series of blogs in which I outline various types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed.

In Part One, I discuss probate as a muniment of title, which usually is one of the least expensive procedures. In Part Two, I discuss the cost of an independent administration of the estate. Both of those procedures require the decedent to have had a Will. If there is no Will, the least expensive way to settle the estate through a court proceeding is a Small Estate Affidavit.

If your loved one died without a Will, there are several different ways you might be required to proceed to accomplish the transfer of his or her assets to his or her legal beneficiaries. The legal beneficiaries will be defined by state law and may not necessarily be those people your loved one intended to receive assets. That is one disadvantage of not having a Will.

Some of the legal proceedings required when there is no Will are quite complicated and very expensive. When you consult with an attorney in such a situation, you will want to explore with him or her whether a Small Estate Affidavit can be used instead of much more complicated probate proceedings. There are specific legal requirements that must be met before a Small Estate Affidavit can be used.

What Is A Small Estate Affidavit?

This is a simple action in which a formal affidavit is filed with the court. The affidavit outlines the family history of the decedent, property owned, and other facts that would determine who are the legal heirs.

This procedure can sometimes be used where there is no Will. It is the least expensive court action to handle the estate in that situation. The Small Estate Affidavit procedure can only be used if the value of the estate, excluding homestead exempt property, is under $75,000. 

The affidavit must be signed under oath by the heirs of the decedent.

Steps In The Small Estate Affidavit Procedure

• All of the information needed to complete the Affidavit must be gathered. This information includes an extensive family history so that the legal heirs may be determined. A description of the assets, both exempt and non-exempt, must be included also. 
• All of the heirs must sign the Affidavit under oath. Rounding up all of the heirs is sometimes difficult.
• In addition, two independent witnesses, who stand nothing to gain from the estate, must sign under oath saying they verify the facts of heirship.
• Once the Affidavit is complete, it is filed with the probate court in the county where the decedent lived.
• A hearing is set for the county judge to take testimony in support of the facts set out in the Affidavit.
• If the judge is satisfied with the truthfulness and completeness of the Affidavit, he or she will sign an order approving the Small Estate Affidavit. The Small Estate Affidavit and Order approving it are then automatically picked up in the official public records for that county.
• You can then use the Affidavit and Order to transfer property of the estate to the legal heirs.

This, as you can see, requires very little court action.

Cost Of The Small Estate Affidavit Procedure

The attorney's fee for this action will depend entirely on how complicated the heirship situation is. Sometimes, drafting the Affidavit and getting it executed involves only one or two people, and other times, there may be many people strung out across the country that have to be involved. Because of this, the attorney's fee can range from about $1,000 to several thousand dollars.

The clerk's filing fee for this procedure is usually about $475 in Texas. That is generally the only court expense.

Even though there is still a cost to using the Small Estate Affidavit procedure, this is the easiest and least expensive court proceeding to transfer assets to heirs when there is no Will. If you would like to talk more about probate or administration of an estate of a loved one, please call Adair M. Buckner for a free initial consultation.*

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*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

** Please remember that the cost estimates given are only general, ballpark numbers for the Amarillo area and the costs can vary widely depending on many variables in your individual situation.