When an individual dies the assets owned by the deceased are typically required to pass through a legal process known as probate. The probate process can be lengthy and costly. Understandably, beneficiaries, heirs, family members, and loved ones as well as creditors would prefer not to have to wait through the formal probate process. Fortunately, for small estates that qualify there are alternatives to formal probate in Texas.
The purpose of probate is to ensure that all of a decedent’s assets are located, inventoried, valued, and eventually passed down to beneficiaries or heirs of the estate. In addition, probate provides a legal mechanism by which creditors of the decedent can file a claim against the assets left behind by the decedent. While most people would agree that trying to distribute estate assets without some sort of legal framework that provides guidelines and procedures for doing so would likely create chaos it can be very frustrating to endure months, even years, of formal probate. Moreover, the longer an estate spends in probate the more fees and costs that are incurred. Those costs are then paid out of estate assets, ultimately diminishing the value of the estate
In Texas, there are two alternatives to formal probate. The first is known as a “Small Estate Affidavit” while the second is called “muniment of title” which is also commonly referred to as “summary administration”. To take advantage of the Small Estate Affidavit alternative the decedent must have died intestate, or without leaving behind a valid Last Will and Testament. In addition the total value of the decedent’s estate excluding the value of the decedent’s primary residence and all other exempt property must be less than $50,000 and there cannot be any outstanding creditor claims. As the name implies, this route requires heirs of the estate to fill out and execute a Small Estate Affidavit attesting to the legal requirements for using an alternative to formal probate as well as to their rights as heirs of the estate. The affidavit must be properly witnessed and filed with the appropriate court. Once the court approves the affidavit the affidavit essentially serves as the legal mechanism for transferring estate personal property of the decedent. This route cannot accomplish the transfer of real property other than the decedent’s primary residence.
If the decedent died testate, or with a Last Will and Testament in place at the time of death, but died with very little in the way of estate assets, then the muniment of title may be an option. Again, you will need to show that there are no outstanding disputed creditor claims as well as that there is no need for formal administration. This route is a bit more complicated than the Small Estate Affidavit route; however, it is significantly less complicated than formal probate. You will need to appear in court and prove the Will left by the decedent but once the judge accepts the will as muniment of title estate assets can pass directly to the beneficiaries without the need for administration.
Stephen A. Mendel, Estate Planning Attorney
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