One and the same affidavit texas montgomery

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    County Court at Law 2

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    • Small Estate Affidavits

    SMALL ESTATE AFFIDAVITS

    Texas Estates Code Chapter 205 dealing with Small Estate Affidavits generates much confusion. Banks, insurance companies, and title companies often tell individuals to file a Small Estate Affidavit (SEA) without considering the limited circumstances in which an SEA can be granted. Individuals then fill out a form without reading the statute and without understanding the Texas intestacy law. They pay a filing fee and expect approval. But many SEAs are denied for problems that cannot be corrected, and the denied applicants lose their filing fees. Many other SEAs cannot be approved without amendment.

    Before filing an SEA, carefully review this checklist and the attached charts regarding Texas rules for who takes what property when the decedent didn’t have a will (rules for descent and distribution). See also the requirements in Chapter 205 of the Texas Estates Code as well as the rules for descent and distribution in Chapter 201. To prepare an SEA that the Court can approve, you will need to understand all of the rules and requirements. The complexity of the Code poses many pitfalls for non-lawyers attempting to comply with the requirements. An attorney’s assistance in drafting a SEA may prevent the denial of an Affidavit that might have been approved if the Affidavit had been prepared correctly.

    This checklist explains the basics, but the list does not cover everything included in Chapter 201 and 205.

    1. Use the most recent SEA form on the Court’s website. To increase the chances that an SEA will include all necessary information, use the form available on the Court’s website. If necessary, include extra pages to provide additional information. The SEA must be completed by persons who have actual knowledge of the stated facts.
    2. Cannot be filed within 30 days of Decedent’s death. Wait long enough to make sure you have ALL bills.
    3. County where Decedent resided. An SEA should be filed in the county where the Decedent resided if Decedent had a domicile or fixed place of residence in Texas. If that’s not Montgomery County, add facts to support venue in Montgomery County. Remember 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 Montgomery County.
    4. No Will. By statute, an SEA cannot be used where Decedent left a will. Applicants must swear that the Decedent died without a will.
    5. No Administration. An SEA cannot be approved if a petition for the appointment of a personal representative is pending or has been granted or if it appears that an administration is needed.
    6. Decedent’s Assets.
       1. List everything. The SEA must list 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, vehicles, household furnishings and real property.
       2. Indicate value. Indicate the value of each asset as precisely as possible. An SEA cannot be approved with any asset of “unknown” value.
       3. Limited estate. The SEA must show that the total assets of the estate are less than $50,000 or less, not including the homestead (see below) and exempt property.
       4. Provide sufficient detail. Indicate the value of each asset as precisely as possible, describing the property with sufficient detail so that it is clear exactly what property is being transferred by Affidavit. For example, give VIN numbers for cars and give the last four digits for any account numbers along with the name of the bank or entity holding the funds.
       5. If Decedent was married at the date of death:
          1. State whether each asset was Decedent’s community property or Decedent’s separate property.
          2. For each asset, give the facts that explain why the asset was community or separate property.
          1. List everything. The SEA must list all of the Decedent’s debts and other liabilities, including all credit card balances, doctor’s bills, utility bills, etc. – owed by Decedent and not paid off. As one of the liabilities, the SEA must list any attorney’s fees to be paid for preparation of the Affidavit.
          2. 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.
          1. To figure out who the heirs are, look at these charts, which summarize Texas rules regarding descent and distribution based on the Texas Estates Code Chapter 201. Decide which of the four charts applies to Decedent, and then look at everything included in the chart.
             1. Married Person with Child[ren] or Other Descendants
             2. Married Person with No Child or Descendants
             3. Unmarried Person with Child[ren] or Other Descendants
             4. Unmarried Person with No Child or Descendants
             1. If Decedent was married at the date of death, the SEA must state the shares 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 not sufficient to say that there was no separate property or no separate real property.
             2. If Decedent was single at the date of death, there is no community property. Put “NA” in the community property column.
             1. 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 on the pdf form).
             2. Every Distributee who has legal capacity must sign and swear to the Affidavit before a notary.
             3. Is there is a minor or otherwise incapacitated Distributee? If warranted by the facts, the natural guardian or next of kin of any minor Distributee or the guardian of any other incapacitated Distributee may sign and swear to the Affidavit on behalf of the minor or otherwise incapacitated Distributee. The fact that someone is signing and swearing on behalf of someone else must be clear from the signature.
                1. For a minor, if Section K of the affidavit does not show why the person has the authority to sign on the minor’s behalf, provide proof that the person signing for the minor is the minor’s natural guardian or next of kin.
                2. For an otherwise incapacitated Distributee, provide letters of guardianship as proof that the person is signing has authority to do so.