A Small Estate Affidavit (SEA) is a legal document that allows property from a will to be transferred without it having to go through the probate process. This form can be completed to speed up the settlement of a small estate through probate. The affidavit is usually completed and filled in the County where the decedent resided. A SEA should be filed in the county where the decedent was domiciled or had a fixed place of residence in Texas.
A small estate affidavit form will generally list the parties involved, the property to be transferred, and other pertinent information. The affidavit is usually sent to the party or entity that is holding the property and acts similar to an order requiring them to release the property at the specified time. Parties involved must be careful to fill out a SEA form and read the statute to understand 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.
In general, small estate affidavits are used when the deceased person’s property is small enough that it does not need to be managed through formal, traditional probate process. The process to file a SEA requires that the following (1) be sworn in: (A) two disinterested witnesses; (B) each distributee of the estate who has legal capacity; and (C) if warranted by the facts, the natural guardian or next of kin of any minor distributee or the guardian of any other incapacitated distributee; Further, the filing party must show the existence of the conditions prescribed by Sec. 205.001(1), (2), and (3); and include a list of all known estate assets and liabilities; the name and address of each distributee; and the relevant family history facts concerning heirship that show each distributee’s right to receive estate money or other property or to have any evidence of money, property, or other right of the estate as is determined to exist transferred to the distributee as an heir or assignee. Additionally, under Subsection (a)(3)(A) A list of all known estate assets under must be indicated and which assets the applicant claims are exempt. To prepare a 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. Therefore, an attorney’s assistance, such as an estate planning lawyer from Brandy Austin Law Firm, PLLC, in drafting a SEA may prevent the denial of an Affidavit that might have been approved if the Affidavit had been prepared correctly.
Several checklists found online can explain the basics of the SEA process. However, the lists do not cover everything included in Chapter 201 and 205. For example, a list may include what to do if decedent was married at the date of death:
- State whether each asset was Decedent’s community property or Decedent’s separate property.
- For each asset, give the facts that explain why the asset was community or separate property.
Or, in the case of exempt property. If you are claiming that an asset is exempt property, allege the exempt status in the “additional information” column on the SEA form.
Following the SEA process correctly will allow for the judge to approve an affidavit under Section 205.003, and the affidavit shall be maintained as a local government record under Subtitle C, Title 6, Local Government Code. Once the judge has approved the affidavit, the documents and order are scanned into the case. A certified copy is issued to the filing party. This certified copy is used to transfer property. The clerk will then take the necessary steps to issue certified copies of the small estate affidavit and then record the certified copy in the public records.
Thus, SEAs may seem like the more efficient and cost saving way to transfer property, people need to be aware of the mistakes than can be made in the process and likely hire a legal professional to assist them.