Small Estate Affidavit (Chapter 205 of the Estates Code)
Small Estate Affidavits can be used when the decedent has died intestate and the value of the estate, exclusive of homestead and exempt property, does not exceed $75,000. The only real estate that may pass using a Small Estate Affidavit is the homestead. In 2015 the legislature tightened up what may be considered a homestead for purposes of this provision.
Will
It has been said that if you don’t have a will the State of Texas will write one for you. While the state doesn’t actually write a will, it does provide for how property passes upon death in the absence of a will, and it is not necessarily the way you would expect, or would like. Here is a link to Estates Code Sections setting out how Separate Property and Community Property passes in the absence of a will. Estates Code §201.001-201.003. Since Texas was once part of Spain and, later, Mexico, it is one of the states in the southwest applying community property concepts.
In recent years the number of ways assets that can pass outside of probate has increased and it is important to plan both with a will, as well as with beneficiary designations, so that your property passes to those to whom you wish to bequeath it. As examples, life insurance policies, investment accounts, bank accounts and even vehicles can pass outside of probate regardless of what a will provides. Now we also have the TOD (Transfer on Death) deed that was created by the legislature recently, so the variables and considerations that should be taken into account have expanded significantly.
In an effort to save money many people, understandably, are tempted to go to an online site and download forms for their wills. However, without a full understanding of the law and dangers involved they risk dying without a proper will or one that does not put into effect their wishes. That is not the time for their family to realize it was not done properly, i.e., when it is too late. Simple wills are not expensive and can decrease probate costs significantly. Seek guidance from an attorney.
Small Estate Affidavits can be used when the decedent has died intestate and the value of the estate, exclusive of homestead and exempt property, does not exceed $75,000. The only real estate that may pass using a Small Estate Affidavit is the homestead. In 2015 the legislature tightened up what may be considered a homestead for purposes of this provision.
Will
It has been said that if you don’t have a will the State of Texas will write one for you. While the state doesn’t actually write a will, it does provide for how property passes upon death in the absence of a will, and it is not necessarily the way you would expect, or would like. Here is a link to Estates Code Sections setting out how Separate Property and Community Property passes in the absence of a will. Estates Code §201.001-201.003. Since Texas was once part of Spain and, later, Mexico, it is one of the states in the southwest applying community property concepts.
In recent years the number of ways assets that can pass outside of probate has increased and it is important to plan both with a will, as well as with beneficiary designations, so that your property passes to those to whom you wish to bequeath it. As examples, life insurance policies, investment accounts, bank accounts and even vehicles can pass outside of probate regardless of what a will provides. Now we also have the TOD (Transfer on Death) deed that was created by the legislature recently, so the variables and considerations that should be taken into account have expanded significantly.
In an effort to save money many people, understandably, are tempted to go to an online site and download forms for their wills. However, without a full understanding of the law and dangers involved they risk dying without a proper will or one that does not put into effect their wishes. That is not the time for their family to realize it was not done properly, i.e., when it is too late. Simple wills are not expensive and can decrease probate costs significantly. Seek guidance from an attorney.