Small Estate Affidavit Checklist

There are all sorts of forms executors, beneficiaries, and probate court clerks have to fill out and correspond with during probate and estate settlement, including affidavits, letters, petitions, summons, orders, and notices.

Small Estate Affidavit Checklist is a commonly used form within Texas. Here’s an overview of what the form is and means, including a breakdown of the situations when (or why) you may need to use it:

Atticus Fast Facts About Small Estate Affidavit Checklist

Sometimes it’s tough to find a quick summary— here’s the important details you should know about Small Estate Affidavit Checklist:

• This form pertains to the State of Texas

• The current version of this form was last revised on January 1, 1970

Government forms are not typically updated often, though when they are, it often happens rather quietly. While Atticus works hard to keep this information about Texas’s Form Small Estate Affidavit Checklist up to date, certain details can change from time-to-time with little or no communication.

Step 1 - Download the correct Texas form based on the name and ID if applicable

Double check that you have both the correct form name and the correct form ID. Some Texas probate forms can look remarkably similar, so it’s best to double, even triple-check that you’re using the right one! Keep in mind that not all States have a standardized Form ID system for their probate forms.

Step 2 - Complete the Document

Fill out all relevant fields in Form Small Estate Affidavit Checklist, take a break, and then review. Probate and estate settlement processes in TX are long enough to begin with, and making a silly error can push your timeline even farther back. No thank you!

Note: If you don’t currently know all of the answers and are accessing Form Small Estate Affidavit Checklist online, be sure to avoid closing the browser tab and potentially losing all your progress (or use a platform like Atticus to help avoid making mistakes).

Step 3 - Have Form witnessed or notarized (if required)

Some States and situations require particular forms to be notarized. If you have been instructed to get the document notarized or see it in writing on the document, then make sure to hire a local notary. There are max notary fees in the United States that are defined and set by local law. Take a look at our full guide to notary fees to make sure you aren’t overpaying or getting ripped off.

Step 4 - Submit Small Estate Affidavit Checklist to the relevant office

This is most often the local probate court where the decedent (person who passed away) is domiciled (permanently resides) or the institution involved with this particular form (e.g. a bank). Some offices allow you to submit forms online, other’s don’t, and we while we generally recommend going in-person to expedite the process, sometimes that simply isn’t an option.

It’s also a generally good idea to establish a positive working relationship with any probate clerk (unfortunately there’s enough people & process out there making things more difficult and unnecessarily confusing for them), so a best practice is to simply ask the probate clerk proactively exactly how and where they’d prefer you to submit all forms.

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Different probate forms or processes can require different deadlines or response times for completing the appropriate form.

While some steps in the process are bound to specific deadlines (like petitioning for probate, having to submit an inventory of assets, or filing applicable notices to creditors and beneficiaries), many probate forms or processes are not tied to a specific deadline since the scope of work can vary based on situational factors or requirements involved.

Either way, there are a bunch of practical reasons why personal representatives should work to complete each step as thoroughly and quickly as possible when completing probate in Texas.

5 reasons you should submit this form as quickly as possible:

1. The sooner you begin, the faster Texas can allow heirs and beneficiaries to get their share of assets subject to probate. Acting promptly can also decrease the costs & overall mental fatigue through an otherwise burdensome process.
   
   Helpful Context: What’s the Difference Between Probate and Non-Probate Assets?

2. In general, creditors of an estate usually have around 3-6 months from the time you file notice to creditors to file any claims for debt against the deceased’s assets. If they don’t, then that debt is forfeited (and more importantly, the executor won’t be held personally responsible). So doing this sooner means you have a better idea of who is owed what and ensures you won’t get a surprise collector months later.

3. Not filing a will within 30 days (on average) could mean that the probate process proceeds according to intestate laws (laws that govern what happens to someone's stuff without a will) or is subject to unnecessary supervision by the probate court. And if you aren't directly related to the deceased (a.k.a. next of kin), this could also mean you lose your inheritance.

4. It’s important to file any necessary state tax returns on behalf of the deceased or estate by the following tax season in Texas. If you don’t, you could owe penalties and interest. This also includes any necessary federal tax returns such as Forms 1040, 1041, or even a Form 706 estate tax return.

5. If a house in the State of Texas is left empty (or abandoned) for a while, insurance can get dicey. For example, if the house burns down and no one has been there for a year, an insurance company may get out of paying your claim.

If you’re not using Atticus to get specific forms, deadlines, and timelines for Texas probate, then try and stay as organized as possible, pay close attention to the dates mentioned in any correspondence you have with the State’s government officials, call the local Texas probate clerk or court for exact answers regarding Form Small Estate Affidavit Checklist, and when in doubt— consult a qualified trust & estates lawyer for that area.

Small Estate Affidavit Checklist is one of the many probate court forms available for download through Atticus.

It may also be available through some Texas probate court sites, such as . In order to access the latest version, be updated with any revisions, and get full instructions on how to complete each form, check out the Atticus Probate & Estate Settlement software or consider hiring a qualified legal expert locally within Texas.

While Atticus automatically provides the latest forms, be sure to choose the correct version of Form Small Estate Affidavit Checklist f using any other site or resource in order to avoid having to re-complete the form process and/or make another trip to the Texas probate court office.

Small Estate Affidavit Checklist is a .pdf, so opening it should be as simple as clicking “View Form” from within the Atticus app or by clicking the appropriate link found on any Texas-provided government platform. Once you’ve opened the form, you should be able to directly edit the form before saving or printing.

Here’s the text, verbatim, that is found on Texas Form Small Estate Affidavit Checklist. You can use this to get an idea of the context of the form and what type of information is needed.

Updated September 1, 2019 Small Estate Affidavits Texas Estates Code Chapter 205 dealing with Small Estate Affidavits often generates confusion. Banks, insurance companies, title companies, and others often tell people to file a Small Estate Affidavit (SEA) without thinking about the limited situations in which an SEA can be approved. People then fill out a form without reading the statute and or understanding Texas intestacy law. They pay a filing fee and expect approval. But many SEAs are denied for problems that can’t be fixed, and the applicants lose their filing fees. Many other SEAs can’t be approved as filed. Small Estate Affidavits are not easy! To prepare an SEA the Court can approve, you’ll need to meet all of the statutory requirements. The complexity of the Code poses many pitfalls for non-lawyers and lawyers alike. So . . . . 1.Before filing an SEA, definitely look at the quick lists below. 2.We also strongly recommend that you review the detailed checklist on pages 2-4 as well as the charts on pages 5-7 regarding Texas rules for who takes what property when the decedent didn’t have a will (rules for descent and distribution). We know this material is dense. A completed SEA can’t be approved unless it meets all of the requirements in Chapter 205 of the Texas Estates Code and follows all the rules for descent and distribution in Chapter 201. These requirements and rules are complex, and the checklist is designed to answer the questions people have when trying to fill out an SEA that can be approved. 3.Heirs may fill out an SEA without the assistance of an attorney, but an attorney’s advice may prevent wasted time and money if a small estate affidavit is not appropriate or may prevent having an SEA denied that could have been approved if prepared correctly. When CAN’T you do a Small Estate Affidavit? An SEA can’t be approved if decedent had a will. An SEA can’t be approved if decedent’s total assets were more than $75,000, not including homestead and exempt property. See checklist #8 on pages 2-3. An SEA can’t be approved unless the assets are worth more than the debts. See checklist #8-10 on pages 2-3. When comparing values, do not consider homestead and exempt property as assets, and do not consider as debts any mortgages or debts secured by exempt property. An SEA can’t be approved if the decedent owned real property unless both of the following are true: The real property was decedent’s homestead property, and Everyone who will inherit any interest in the real property was homesteading with decedent on the date of decedent’s death. See checklist page 3, second bullet. Note that the Court will always check the real property records before approving an SEA. An SEA can’t be approved if you can’t locate an heir or if heirs refuse to sign the SEA (or have someone who has legal authority sign for them). An SEA can’t be approved in this county unless decedent was residing in the said County on the date of death or other facts indicate this County is the appropriate place to file. See checklist page 2, #5. An SEA can’t be approved in many Counties if any of the heirs are minors (under the age of 18). Check with your county to verify their local requirements. What are the most common mistakes people make when filling out an SEA? Mistake: not using the required form. See checklist page 2, #1. Mistake: leaving blanks when the form requires an answer. The Court can’t approve an SEA if needed information is missing. Before getting signatures, carefully check all pages to make sure you’ve answered all necessary questions. Mistakes in filling out the chart in Section “I” of the form (see checklist #8 on pages 2-3): Not listing assets with enough detail to identify them. Listing assets with “unknown” value. Not including facts to show why each asset of a married decedent is “separate” or “community” property. Mistakes in filling out the chart in Section “L” of the form (see checklist #15 on page 4 and charts on pages 5-7): Not listing all heirs and not getting the shares right in the heirship chart. Not filling out all required columns in the heirship chart. Always fill out both “separate property” columns and also fill out the “community property” column if decedent was married. Small Estate Affidavit Checklist, Page 2 of 7 Updated September 1, 2019 Small Estate Affidavit (SEA) Checklist This checklist explains the basics, but the list does not cover everything included in Chapters 201 and 205. 1.Use the most recent Small Estate Affidavit (SEA) form. The Court requires that applicants use the SEA form that is available on the Court’s website because having applicants use that form helps ensure an SEA will include all necessary information,. If needed, include extra pages to provide additional information. The SEA must be completed by persons who have actual knowledge of all stated facts. 2.Death Certificate. A death certificate must be filed with all probate applications, including SEAs. An easily readable copy is fine. Cross out the social security number. 3.Can’t be filed within 30 days of decedent’s death. Wait long enough to be sure you have all bills. 4.County where decedent resided. An SEA should be filed in the county where decedent resided if decedent had a domicile or fixed place of residence in Texas. Include facts to support venue in the County in which you are submitting the SEA. Granting an SEA is in the Court’s discretion; it is unusual for the Court to approve an SEA for a decedent who did not have a fixed place of residence in the County where an SEA is submitted. 5.No Will. By statute, an SEA can’t be used when decedent left a will. All distributees must swear that the decedent died without a will. If decedent had a will, you will need to use a different probate procedure. 6.No Administration. An SEA can’t be approved if a petition for appointment of a personal representative is pending or has been granted or if it appears that an administration is needed. If there’s any question about whether you need an administration, consult with an attorney. 7.Decedent’s Estate Assets. List everything. The SEA must list all of decedent’s known estate assets – not just some of them. Assets are any property owned that has monetary value, including cash or bank accounts, real estate, vehicles, and household furnishings. Indicate value. Indicate the value of each asset as precisely as possible, using values at the time the affidavit is signed. An SEA can’t be approved with any asset of “unknown value” because it is impossible to know if total assets are $75,000 or less, and it might be impossible to know if the estate is solvent. With paperless accounts, finding some values can be challenging. If a financial institution will not provide a precise value, you might be able to get the institution to provide an approximate amount or a range that would be sufficient to allow an SEA to be approved. Estates Code Chapter 153 also provides a method by which you can request a Court order to get access to account information in appropriate situations. Limited estate. The SEA must show that the total estate assets are $75,000 or less, not including the homestead (see next page) and exempt property (see next page). Provide sufficient detail. Describe each asset with enough detail to make it clear exactly what property is being transferred by affidavit. For example, give VIN numbers for cars and give the last four digits of any account numbers, along with the name of bank or other entity holding the funds. If decedent was married at the date of death, you must also add the following in the “additional information” column on the SEA form: State whether each asset was decedent’s community property or decedent’s separate property. See definitions on the form. For each asset, give the facts that explain why the asset was community or separate property. For real property, indicate the date the real property was acquired, in addition to other facts. For each asset that was community property, indicate in the “additional information” column the total value of the asset; you will list the value of decedent’s interest in the “value” column. Exempt property. If decedent is survived by a spouse, minor children, or unmarried adult children who lived with decedent, you should consider which assets are “exempt.” If you claim any assets are exempt, you must indicate which assets you claim as exempt in the “additional information” column in the chart in Section “I” of the SEA form. “Exempt property” is not the easiest concept, and defining Small Estate Affidavit Checklist, Page 3 of 7 which assets are “exempt” is beyond the scope of this limited checklist. Exempt assets are those that are exempt from forced execution under Chapter 42 of the Texas Property Code and that would be eligible to be set aside under Estates Code Section 353.051 if decedent’s estate were being administered. Exempt assets include home furnishings, farm animals, and some other property, as well as decedent’s pension benefits and IRAs. Insurance benefits are also exempt. You may need to do some research or consult with an attorney regarding which assets are exempt. Real property: homestead to homestead. The only real property that can be transferred by an SEA is decedent’s homestead property. Even then, real property can’t be transferred by an SEA unless the real property will be inherited only by person(s) homesteading with the decedent at the time decedent died –decedent’s surviving spouse and/or minor child(ren) who resided on property with decedent. If this is the case, the SEA must include sufficient facts to support the homestead exemption and must also include the street address of the property and, if possible, the legal description. 8.Decedent’s Debts / Liabilities. List everything. The SEA must list all of decedent’s existing debts and other liabilities, including all credit card balances, doctor or hospital bills, utility bills, etc. – anything owed by decedent or decedent’s estate and not paid off as of the date the SEA will be signed. The SEA must list any attorney’s fees paid or to be paid for preparation of the SEA. If attorney’s fees are not listed as an estate liability, whoever paid the fees is responsible for those fees; the SEA will not have the estate reimburse that person for those fees. If there are no debts or liabilities, indicate “none.” This section can’t be left blank! Provide sufficient detail. Indicate the amount of each liability as precisely as possible, describing the debt or other liability with sufficient detail so that it is clear who the creditor is. Also indicate at least the last four digits of any known account numbers. 9.Solvent. The total of estate assets – not including homestead and exempt property – must exceed the total of known liabilities (not including debts secured by homestead and exempt property). If they do not, the SEA must be denied. Distributees can pay off enough debts so that the assets exceed the remaining liabilities. 10.Medicaid. The SEA must indicate whether decedent applied for and received Medicaid benefits on or after 3/1/2005. If so, you must either (1) list as a liability the amount owed to Medicaid or (2) file a Medicaid Estate Recovery Program (MERP) certification that decedent’s estate is not subject to a MERP claim or (3)include additional information proving that a MERP claim will not be filed. For more information, see https://hhs.texas.gov/laws-regulations/legal-information/your-guide-medicaid-estate-recovery-program. 11.Family history. The SEA must state the facts about decedent’s marital and family history in sufficient detail to show both who inherits decedent’s property under Texas law as well as the shares of those heirs under Texas law. As long as you fill out the form carefully and completely, Section “K” of the form will lead you through the appropriate questions, except for relatively unusual situations. 12.List all heirs/distributees. After you have filled out Section “K” of the form completely, figure out who the heirs are under Texas law and list all of the heirs in Section “L” of the form. To figure out who the heirs are, look at the charts on pages 5-7of this handout, which summarize Texas rules regarding descent and distribution based on Texas Estate Code Chapter 201. Decide which of the following four charts applies to decedent, and then look at everything included in that chart: 1.Married Person with Child[ren] or Other Descendants 2.Married Person with No Child or Descendant 3.Unmarried Person with Child[ren] or Other Descendants 4.Unmarried Person with No Child or Descendant If any heir died after the decedent, contact the Court. In Section “L” of the form, list the name, address, phone number, and email address of every heir/distributee of decedent’s estate. You must list heirs for every type of property, even if you don’t think decedent owned property of a particular type. 13.Minor heirs. Many Courts will not approve an SEA if any of the heirs is a minor. Check with your local court before filing an SEA. 14.List correct inheritance shares. In Section “L” of the Court’s approved SEA form, you must list the shares of each distributee in every possible type of property. In every SEA, fill out both “separate Small Estate Affidavit Checklist, Page 4 of 7 property” columns, even if you did not list any real property. If decedent was married when he or she died, you must also fill out the “community property” column. To figure out shares, see the appropriate chart on pages 5-7 of this handout. If decedent was married at the date of death, the SEA must state the shares of each distributee in all three types of property: separate personal property, separate real property, and decedent’s share of the community property. (The surviving spouse will retain his or her own share of the community property.) It is never sufficient to say that there was no separate property or no separate real property. If decedent was single at the date of death, there is no community property. Put “NA” in the community property column – but always fill out both separate property columns. 15.Signed and sworn to by all distributees. If you need more than one signature page, use as many signature pages as needed, but note that every signature page must include all the italicized, boxed statements regarding what the distributees are swearing or affirming, what the distributees are requesting, and what those who sign the affidavit could be liable for. See the italicized paragraphs in the box above the distributees’ signature lines on the Court’s SEA form (at the top of page 7 of the pdf version of the form). Every distributee who has legal capacity must sign and swear to the affidavit before a notary. Is there an incapacitated distributee (not the result of being a minor)? If warranted by the facts, the guardian of any incapacitated distributee may sign and swear to the affidavit on behalf of the incapacitated distributee. The fact that someone is signing and swearing on behalf of someone else must be clear from the signature. For an incapacitated distributee, provide letters of guardianship as proof that the person signing has authority to do so. Is there a distributee who survived decedent, but who is now deceased? If no personal representative has been appointed for a now-deceased heir, you can’t use the Small Estate Affidavit probate procedure and must file an Application to Determine Heirship. If a personal representative has been appointed, the personal representative can sign on behalf of the now-deceased heir’s estate. In that case, the fact that the personal representative is signing on behalf of the estate must be clear from the signature. In addition, you must provide Letters Testamentary or Letters of Administration as proof that the person signing has authority to do so. Is there a missing heir? If you do not know where to find an heir, you can’t use the Small Estate Affidavit probate procedure and must file an Application to Determine Heirship. Note that an applicant for determination of heirship must be represented by an attorney. 16.Sworn to by two disinterested witnesses: Two disinterested witnesses must each sign and swear to the affidavit before a notary. These witnesses must be able to swear to all of the facts included in the SEA, not only the family history facts. Disinterested witnesses are witnesses who have no interest in decedent’s estate and who do not inherit from decedent under the laws of descent and distribution of the State of Texas. As noted in the boxed, italicized statement on the SEA form above each disinterest witness’s signature, these witnesses – along with the distributees/heirs – are liable for any damage or loss to any person that arises from a payment, delivery, transfer, or issuance made in reliance on the affidavit. 17.Possible hearing. The Court usually does not require a hearing on SEA applications, but in some circumstances the Court may require a hearing before an SEA will be approved. If a hearing is needed, the Court will contact you to set a hearing. Do not set a hearing unless the Court has asked you to do so. Small Estate Affidavit Checklist, Page 5 of 7 Texas Descent and Distribution 1 The Legal Effect of Not Having a Will (for decedents dying after 9/1/1993) 1. Married Person with Child[ren] or Other Descendants A. Decedent’s separate personal property (all that is not real property) (EC § 201.002(b)) 1/3 to surviving spouse Children take 2/3 equally B. Decedent’s separate real property (EC § 201.002(b)) Surviving spouse gets 1/3 life estate Children take all equally, subject to surviving spouse's 1/3 life estate C.Decedent’s share of community property when all surviving children and descendants of deceased are also children or descendants of surviving spouse. (EC § 201.003(b)(2)) C.Decedent’s share of community property when there are children or other descendants from outside of the existing marriage on the date of decedent’s death (or if decedent died before September 1, 1993) (EC § 201.003(c)) . All to surviving spouse All to children, who take equally Surviving spouse takes none, but retains own share 1 The charts in this handout illustrate the general rules of descent and distribution under Texas law. In addition to the statutory references noted throughout, see the following Texas Estates Code (EC) provisions, among others: § 201.101, Determination of Per Capita with Representation Distribution (fka per stirpes); §201.051 et seq., Matters Affecting Inheritance (including Adoption [§ 201.054] and Collateral Kindred of Whole and Half Blood [§ 201.057]); Advancements, §§201.151 & 201.152; and Requirement of Survival by 120 Hours, §§ 121.052 & 121.053 (see also §§ 121.151-121.153). All separate real property will be owned outright by decedent’s child[ren] or other descendants when surviving spouse dies. Small Estate Affidavit Checklist, Page 6 of 7 2. Married Person with No Child or Descendant A. Decedent’s separate personal property (all that is not real property) (EC § 201.002(c)(1)) All to surviving spouse B. Decedent’s separate real property (EC § 201.002) If decedent is survived by both mother and father. EC §§201.001(c) & 201.002(c)(2) & (3). 1/4 to father 1/4 to mother 1/2 to surviving spouse If decedent is survived (1) by mother or father and (2) by sibling(s) or their descendants. EC §§ 201.001(d)(1) & 201.002(c)(2) & (3). 1/4 to surviving parent 1/4 to siblings, etc. 1/2 to surviving spouse If decedent is survived by mother or father, but is not survived by any sibling(s) or their descendants. EC §§201.001(d)(2) & 201.002(c)(2) & (3). 1/2 to surviving parent 1/2 to surviving spouse If decedent is survived by neither parent, but is survived by sibling(s) or their descendants. EC §§ 201.001(e) & 201.002(c)(2) & (3). 1/2 to siblings, etc. 1/2 to surviving spouse If decedent is survived by no parent, no sibling, and no descendant of a sibling. EC § 201.002(d). All to surviving spouse C. Decedent’s share of community property (EC § 201.003(b)(1)) All to surviving spouse Small Estate Affidavit Checklist, Page 7 of 7 3. Unmarried Person with Child[ren] or Other Descendants (EC § 201.001(b)) All to children, who take equally 4. Unmarried Person with No Child or Descendant All property passes depending on who survived the decedent: 1 If decedent is survived by both mother and father. EC § 201.001(c). 1/2 of all property to father 1/2 of all property to mother If decedent is survived (1) by mother or father and (2) by sibling(s) or their descendants. EC § 201.001(d)(1). 1/2 to siblings or to descendants of deceased siblings 1/2 to surviving parent If decedent is survived by mother or father, but is not survived by any sibling(s) or their descendants. EC § 201.001(d)(2). All to surviving parent If decedent is survived by neither parent, but is survived by sibling(s) or their descendants. EC § 201.001(e). All to siblings or to descendants of deceased siblings 1 If none of the four situations above applies, see EC § 201.001(f)-(h).