Small Estate Affidavits

Small Estate Affidavits (“SMAs”) are governed by chapter 205 of the Texas Estates Code.  SMA’s represent a fairly recent legislative response to address situations in which people die without a will but have modest estates which may preclude the cost involved in an heirship and administration.

SMAs are only available in a very specific scenario, the criteria including:

  1. The person died without a will.
  2. At least 30 days have passed since the death of the decedent.
  3. No person has been appointed as personal representative of the estate.
  4. The value of the probate estate is less than $50,000, not counting the homestead and other exempt property.
  5. The total assets (excluding exempt above) exceed total known debts (exclusive of debts on exempt property).

The affidavit lists all estate assets and liabilities, the names and addresses of each distributee, and the relevant family history to show who the heirs are and the percentage they are to inherit under the intestacy statutes.  It also must be signed by two disinterested persons (people who will NOT inherit) and all distributees who have legal capacity (over 18 and mentally competent) or the natural or court-appointed guardian of minors or incapacitated.  Once complete, the SMA is filed with the probate court.  The court reviews the affidavit for statutory compliance.  If approved, a certified copy of the affidavit may be used to distribute money or assets to the heirs.  SMA’s do not transfer title to real property, with the exception of the homestead, so if real property in addition to the homestead is a part of the estate, a SMA is not an option.