Texas offers some probate shortcuts for "small estates." These procedures make it easier for survivors to transfer property left by a person who has died. You may be able to transfer a large amount of property using simplified probate procedures or without any probate court proceedings at all -- by using an affidavit. And that saves time, money, and hassle.
Here are the ways you can skip or speed up probate. (If the affidavit procedure is used, there's no need to use the simplified probate procedure.)
Texas has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property -- for example, a bank where the deceased person had an account -- gets the affidavit and a copy of the death certificate, it releases the asset.
The out-of-court affidavit procedure is available in Texas if there is no will, and the value of the entire estate, not including homestead and exempt property, is $75,000 or less. It can be used to transfer homestead, but no other real estate. There is a 30-day waiting period.
The affidavit must include the following information:
Two witnesses and each inheritor must sign the affidavit. The witnesses must have no legal right to inherit the property. A probate judge must approve the affidavit. Tex. Est. Code § 205.
Texas has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate.
You can use the simplified small estate process in Texas if the value of the property doesn't exceed the homestead, exempt property, and what's needed to pay the family allowance and certain creditors. Tex. Est. Code § 354.001.
The executor must still file an inventory, an appraisal of the value of the property, and a list of creditor claims against the estate. The executor may be required to pay a bond, which is a type of insurance that protects the estate from wrongful conduct by the executor. The court will order the payment of certain claims, and the executor should pay these claims in the order of provided by the court. The executor prepares an accounting and submits it for the court’s approval. If there is any property left after paying the claims, the court can order the executor to distribute the remaining property as it instructs.
"Independent administration" is available -- regardless of the value of the estate -- if it's requested in the will or if all inheritors agree to it. The executor submits the deceased person’s will and files an inventory, an appraisal of the value of the property, and a list of creditor claims against the estate with the probate court. Bond may be waived. There is no need for any further proceedings in front of the probate court. Tex. Est. Code § 401.
For help determining if an estate qualifies for one of these probate shortcuts, or handling an estate in general, see The Executor’s Guide, by Mary Randolph (Nolo) or Estate Planning Basics, by Denis Clifford (Nolo).