Respectfully Submitted by Patricia D. Henderson
In order to collect assets of an estate, the affidavit must include information about the family history that reflects the heirs right to receive property. The affidavit must be approved by the court.
Texas has one of the most liberal and useful small estate administration procedures of any state. While a qualifying estate must be valued at $50,000.00 (that's the probate estate) from which the value of the decedent's homestead is excluded.
Small estate administration is available to anyone who dies without a Will (Intestate). Many Texans of modest circumstances who do not own homesteads, and whose only concern is to collect a small bank account in the decedent's name at the local bank will not be able to file for the small estate affidavit if the decedent died with a Will (Testate). There should be a way around this until the law changes, that being having the beneficiaries enter into a family settlement agreeing to not probate the Will. If the Will is not probated then the decedent died intestate and would qualify to file for a small estate affidavit. Such agreements are favored by the Texas courts as well as the law and are not deemed to be an unwarranted interference with the jurisdiction of the courts, or against public policy. On the contrary, public policy favors them.
Hopefully, the probate judges will honor this long established principle of Texas law.
