TN 13 (09-14)
GN 02315.082 Texas Small Estates
A. Background on the Texas small estates statute
The Texas small estates statutes provide procedures for collection of small estates upon affidavit, application for an order of no administration, and summary proceedings for small estates after a personal representative has been appointed.
NOTE: Texas Probate Code sections 137 through 143 were repealed effective January 1, 2014. See House Bill 2502, Acts 2009, 81st Leg., ch. 680, § 1, eff. Jan. 1, 2014.
B. Texas procedure for collection of small estates by affidavit
Sections 205.001 through 205.008 of the Texas Estates Code provide for the collection and distribution of a small estate by affidavit where the value of the entire estate’s assets does not exceed fifty thousand dollars ($50,000).
1. Requirements for collection of small estates by affidavit
Section 205.001 of the Texas Estates Code states that the distributees of the estate of a decedent who dies intestate shall be entitled to the estate, to the extent that the assets (excluding homestead and exempt property) exceed the known liabilities, without waiting for a personal representative’s appointment when:
No petition for a personal representative’s appointment is pending or has been granted;
Thirty (30) days have elapsed since the decedent’s death;
The value of the entire estate (excluding homestead and exempt property) does not exceed $50,000; and
An affidavit is filed with and certified by the clerk of the court having jurisdiction and venue of the estate.
2. Affidavit requirements
The affidavit must meet the following requirements:
Be sworn to by two disinterested witnesses, by all distributees who have legal capacity, and, if the facts warrant, by the natural guardian or next of kin of any minor or the guardian of any other incapacitated person who is also a distributee;
Show the existence of the conditions set forth in GN 02315.082B.1. in this section; and
Include a list of all of the known assets and liabilities of the estate, the names and addresses of the distributees, and the relevant family history facts concerning heirship that show the distributee’s rights to receive the money, property, or other assets of the estate.
The judge must determine whether the affidavit satisfies the requirements of section 205.002 of the Texas Estates Code. If the judge approves the affidavit, then the court records it as an official public record under Chapter 194 of the Texas Local Government Code. See section 205.005.
Section 205.004 of the Texas Estates Code provides that the distributees may present a copy of the affidavit, certified by the court clerk, to anyone owing money to the estate or having custody or possession of property of the estate. Sections 205.001 through 205.008 do not affect the disposition of property under the terms of a will or other testamentary document.
3. Policy of good acquittance and the effect of the affidavit under Texas law
An underpayment is the difference in the beneficiary’s favor between the amount SSA paid to a beneficiary and the amount SSA actually owed the beneficiary. For more information, see 20 C.F.R. § 404.504. An individual provides “good acquittance” to SSA when SSA’s payment of an underpayment to that individual relieves SSA from any further liability for payment. This means that the individual has attested that there is no one of higher priority who could claim an underpayment and SSA has determined this to be true. For more information, see 20 C.F.R. § 404.503(e) and GN 02301.030C.
Section 205.007 of the Texas Estates Code states that the effect of the affidavit is to discharge and release the person making the payment or delivery of the property to the distributee pursuant to the affidavit to the same extent as if payment had been made to a decedent’s personal representative. The person making the payment per the affidavit may not be required to see to the application thereof or to inquire as to the truth of any statement in the affidavit. If the person to whom such affidavit is delivered refuses to pay or deliver the property as provided, the distributees may bring a judicial proceeding to compel payment. The distributees who received payment per the affidavit are answerable to any person having a prior right and are accountable to any later appointed personal representative. In addition, the person who executes the affidavit is liable for any damage or loss to any person that arises from payment or delivery of property made in reliance on such affidavit.
C. Texas procedure for an order of No Administration
Sections 451.001 through 451.004 of the Texas Estates Code contain the procedures for obtaining an order of no administration for a small estate where the value of the estate’s entire assets does not exceed a family allowance.
1. Requirements for obtaining court order of No Administration
Sections 451.001 through 451.003 of the Texas Estates Code provide that if the value of an estate’s entire assets (excluding homestead and exempt property) does not exceed the amount to which the decedent’s surviving spouse and minor children are entitled as a family allowance, an application may be filed by them or on their behalf in any court of proper venue for administration requesting that the court make a family allowance and enter an order that no administration is necessary.
The application must name the heirs and devisees, list all known creditors of the estate and their claims, and describe and give an estimated value of the real and personal property of the estate and the liens and encumbrances thereon.
Upon the filing of such an application, the court will hold a hearing. If the court finds that the facts contained in the application are true and that the expenses of the last illness, funeral charges, and expenses of the proceeding have been paid or secured, the court must make a family allowance.
If the estate’s assets (excluding homestead and exempt property) are exhausted, the court must also order that no administration is necessary, and assign the entire estate to the surviving spouse and minor children.
2. Policy of good acquittance and the effect of the Order of No Administration under Texas law
The policy of “good acquittance” is explained in GN 02315.082B.3. in this section, and applies to the order of no administration as well. Under Section 451.003 of the Texas Estates Code, the effect of the order of no administration is that it provides sufficient legal authority for all persons owing any debt to or having business with the estate to make payments or transfers to the persons described in the order as entitled to receive the estate without administration. The persons described in the order are entitled to enforce their right to such payment or transfer by judicial proceeding.
3. New assets discovered after No Administration has been ordered
Under section 451.004 of the Texas Estates Code, at any time within one (1) year from the entry of an order of no administration, any interested person may file an application to revoke the order on the following grounds:
Other property has been discovered;
Property belonging to the estate was not included in the application for no administration; or
Property described in the application was incorrectly valued.
Upon proof of any of those grounds, the court must revoke the order of no administration.
D. Texas procedure for summary administration for small estates after personal representative appointed
Section 354.001 of the Texas Probate Code provides the procedures for summary administration of small estates after a personal representative has been appointed where the value of the decedent’s estate is insufficient to pay all creditors. The personal representative must, upon court order, pay the claims in the order provided and to the extent permitted by the estate’s assets, and thereafter, present the personal representative’s account with an application for the settlement and allowance thereof. Thereupon, the court, with or without providing notice, may adjust, correct, settle, allow, or disallow such accounts, and if the account is settled and allowed, may order final distribution, discharge the personal representative, and close the administration.
References: Tex. Estates Code Ann. §§ 205.001-205.008, 354.001, 451.001-451.004 (West 2014).