Small Estate Affidavit Texas: Fill & Download for Free

Yes. In Texas, there are two alternatives to formal probate if there is a will:a will can be admitted as a muniment of title if there is no debt other than real estate liens; ora small estate affidavit can be filed if the value of the estate, excluding homestead and exempt property, does not exceed $75,000.00.Just try to die while meeting one or both of those conditions.

I agree with the other attorney. In Texas, without a will, there are alternatives from affidavits of heirship to small estate proceedings to determinations of heirship and administration. You need to contact a qualified attorney in your area.

Andrew Weill beat me to it (Andrew Weill's answer to Are the use of Trusts the best way to leave money to your heirs?), but I’ll expand on this some from the perspective of an attorney and investment advisor.FIRST, this is a general comment. Every person’s situation is different. I could say “95% of people don’t need this,” and you could be the 5% who do. So don’t ever make personal investment or estate planning decisions based on an online post, CONTACT AN ACTUAL INVESTMENT ADVISOR OR ATTORNEY — most will have initial conversations for free (I do).Trusts originally served four primary purposes (yes there are others, but these, historically, have been the big three):Avoiding probate. Probate is seen as a “big, long, expensive, painful” process. It takes court filings, hearings, money, etc. So put all of your assets into a trust, or have a pour over will that moves things to a trust when you die, and avoid probate. Depending on the state where you live, this may or may not still be valid. I don’t know the probate process in all states (in fact, I’ve only probated wills in two states). But at least in Texas, this is over blown. The process of probating a will is actually not that expensive. If your estate is too small for a normal probate process, there’s even something called the “small estate affidavit” that allows you to “skip” most of the formal probate process. I personally think, in Texas anyway, the use of a revocable/pour over trust for purpose of avoiding probate is overblown;Avoiding taxes. Depending on the year, the estate tax exemption has ranged from $0 to $11m for couples and everything in between. This means if you had as little as $500,000 (which I realize for a lot of people is a TON of money, but there are millions of people that have more than that in this country), you could end up (again depending on the year), having the government take upwards of 33% and 40% of that when you die. This is particularly problematic if you own a bunch of real property (land) that isn’t particularly liquid. What do you do if the family ranch is worth $5m and gets taxed at 40%? When parents die, kids have to either come up with $2m cash or sell the property. OR, YEARS before parents dying, they setup trusts to transfer outside of estate taxes (it is more complicated than that, but that is the general premise). Since the estate tax exemption is currently around $11m for couples, this is much less of a problem today than it was in the past. Of course, there are democratic candidates calling for the elimination of the exemption and taxing estates at 100%…so this could go back the other way. I refer to the constant changing of the estate laws as the “Estate Lawyer Employment Acts.” You should have seen the mad scramble at the end of 2012 when there was a chance the exemption was going to $0 (didn’t happen);Protecting Minors. If you are parents who have a lot of money, or not and just have life insurance, and you die, you don’t necessarily want your 12 year old to have a million dollars at his or her disposal. A Trust can help deal with that (and still is a good way to deal with that); andLiability Protection. If you move assets to an irrevocable trust, that you are not the trustee on, you can shield those assets from liability. Meaning if I have the right to income and “expenses to maintain my standard of living” but NOT the right to actually control the trust, and I get sued for $10m, that trust, if setup correctly and in advance, might protect against that judgment or from creditors. This is still a legitimate use of trusts, but I personally prefer investment companies, particularly in Texas with how strong the corporate liability shields are and/or the difficulty (if not impossibility now) of piercing the corporate veil in the state.Of course, there are some MAJOR disadvantages to passing assets via a trust:You don’t get a step-up in basis. To me this is the number one reason to be cautious about using trusts (living trusts aside). A step up in basis means the heirs don’t have to pay capital gains tax. So if you have stock ABC that you bought $100,000 of for $1 per share and it’s now worth $10 per share (so $1m total), if you did NOT get a step up in basis, that’s a $900,000 capital gain your heirs would have to pay a tax on. If you get a step-up in basis, you don’t have to pay that tax;They are tax inefficient during life, particularly irrevocable trusts. LLC’s, if you have real estate, tend to be a much better vehicle from a tax rate perspective. Why put something into a trust that’s going to get taxed at over 33%, when you put it in an LLC, get your personal tax rate (if lower), and the current Trump real estate tax advantages? (TALK TO YOUR ACCOUNTANT/LAWYER ABOUT THIS AND WHETHER IT ACTUALLY HELPS YOU);For many assets, its just as easy to pass them via a POD (payable on death)/beneficiary designation. IRAs, bank accounts, insurance, brokerage accounts, etc, all allow you to designate who they go to after you die. This happens as soon as you die — no need for probate, trusts, or anything else. MOST assets can be passed this way, which eliminates the need for paying for a trust).So, as Mr. Weill said, the answer is really “it depends.” Why are you using one? What state do you live in? How much assets do you have? What KIND of assets are they (real property, cash, stocks?); How old are you? How much life insurance do you have? Do you have kids or young heirs? Do you care what your heirs do with the money?It’s a good question to ask, as if one is right for you (or maybe a family investment company), it is better to set those up when you’re young, than when you’re on death’s door. Doing it later removes options. But, they aren’t as necessary as they used to be — which doesn’t mean you don’t need one — it just means you actually need to have a discussion with your attorney/advisor.