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[Music] hi my name's Isaac Shutt I'm an estate  planning and probate attorney licensed both in   Texas and in Wyoming today I'm going to talk  about the Texas small estate affidavit now what   is a small estate affidavit well it's a legal  document that goes through Court when a person   has died here in Texas without a valid last  will and testament now I've got a couple of   other videos about some similar documents one  being an Affidavit of Airship and the other   being a determination of heirship and this one  is sort of in the middle and it's so confusing   because these documents have similar names  and they kind of do similar things but which   one is right for this particular deceased person  really depends on who the relative lives are like   who the heirs are and then also what assets  there are that need to be divided up so this   video is specifically about the smallest state  affidavit so again a small state affidavit only   applies if the person died without a valid  will you can't under the current law do a   small state affidavit if there's a valid will if  there's a valid will you have to go probate that   will which honestly is not a terrible thing  anyway if there's a valid will just get the   will probated that's better but if there's no  valid will the smallest affidavit is an option   if the deceased had very few unsecured creditor  claims and no real estate other than the homestead   now the value of the estate not including that  Homestead Property has to be as you imagine   small and in this case seventy five thousand  dollars if you're dealing with an estate that's   more than seventy five thousand dollars in  value you can't do a small estate affidavit   now the small estate affidavit you don't have to  have an attorney prepare a small estate affidavit   for you you can DIY this even though it's filed in  the court you're not required to have an attorney   I think most people do have a lawyer prepare their  small state affidavit for them because it is a   legal document and it is a little complicated  now let's talk about some of the mechanics of   that small state affidavit um the small state  affidavit has to be signed off by all of The   Heirs so anybody who's going to be inheriting  uh you know under that small seat affidavit   has to sign off on it in front of a notary and  then in addition you have to have not one but   two disinterested Witnesses so a decision should  witness is somebody who really has no Financial   stake in that small state affidavit so typically  this is going to be a church friend or you know   a neighbor or whatever but somebody who knew the  deceased person really well and feels comfortable   signing in front of a notary to state that there  are no other errors other than the errors listed   in that small state affidavit so we have to have  all the air sign off and two witnesses sign off   from there you've got the document prepared  you've got it signed off by all those folks   then it gets filed with the local Probate Court uh  you know whatever court has probate jurisdiction   in the county where the person resided at the  time of death so you file it into that Court   and then the judge will consider it now that  in and of itself is the biggest drawback to   the small estate affidavit and it it really is  a deal breaker the judge doesn't have to accept   your small estate affidavit okay so you may go  through all that effort and Hassle and expense of   preparing the small state affidavit uh getting all  the heirs to sign it and a lot of times they're   all over the place you know geographically getting  Witnesses comfortable with signing getting them   all to sign then you pay a filing fee and then the  judge just says nope I'm not going to approve it   well that's totally up to the judge it's not like  a lot of our other areas of law where you know if   you prove all the facts of your case the judge is  obligated to rule in your favor it's not like that   with a small estate affidavit with a small state  affidavit the judge doesn't even have to give a   reason if they don't want to approve it they don't  have to approve it and so for example here in the   Dallas area a lot of the judges don't approve  small estate affidavits I would say less maybe   greatly less than half actually get accepted and  so for that reason when we have a potential client   that meets with us and says hey Isaac I think  this would be a good uh candidate for small   estate affidavit but then when I share that they  may go through this whole process and pay all the   the money and Court filing fees and everything  like that only for potentially the judge not   potentially likely for the judge to turn it down  you know that potential client says no I don't   want to do a small estate affidavit it's not worth  it to me um it's not worth wasting all that time   wasting all that effort and wasting all those  fees if there's less than a 50 chance that the   judge even signs off on it so again the judge in  in the county where you file might be different   and might be more willing to sign off on small  state affidavits but again the moral of the story   here is that you can't force them it's not like  you can say hey judge you got it all wrong you   should have signed off on this thing it's just  totally up to the judge whether or not to sign   it and so for that reason a lot of people don't  want to do the smallest city affidavit there's   another negative to the smallest state affidavit  which is that they're relatively rare So if you're   dealing with let's say a bank you're trying to  get into a deceased person's bank accounts after   that person's died and let's say you go through  the small state affidavit process the judge signs   off and you think great awesome I've got my court  paperwork I'm going to take that to the bank well   now you're going to run into another problem  because a lot of the banks don't know how to   deal with small state affidavits so they'll  take your small estate affidavit and then go   so great I don't know what to do with this and  so they'll have to send it to a legal team and   eventually they'll get it approved but it won't  be necessarily a smooth process just because   they're not used to seeing small state affidavits  they're more used to seeing um like after a will   probate a document called letters testamentary  or kind of it's twin a document called letters   of administration which is the process that you  go through in a determination of Airship process   so those they see way more often at the bank than  the small estate affidavit so you could go through   all this process get it to prove and the bank  go I don't know what this is and then you've got   another battle to fight and getting them convinced  that the small state affidavit is legit and that   they should honor it and then also similar comment  dealing with real estate so you know you can do a   small state affidavit if the only real estate that  was owned by the deceased was his or her Homestead   but again when you go to sell that property the  title company is not used to seeing a small state   affidavit as a basis for good title so you may  run into another problem when you go to sell   that person's house they may say yeah we're not  going to honor your small estate affidavit we're   not convinced that this is legit we're just not  comfortable because we don't see this very often   you know go do a determination of Airship which is  kind of like the normal way of doing it so I don't   want to "poo poo" on the small estate affidavit  I think it has its place you know like I said it   just really depends on the facts of your case on  whether or not the determination of Airship the   smallest state affidavit or the affidavits of of  Airship which one of those three options is best   when your loved one has died without a will it  just really depends on you know your particular   situation and you really just need to go meet with  a probate lawyer to find out which one is going to   fit your situation the best but I hope you found  this video helpful again my name is Isaac Shutt   I'm an estate planning and probate attorney  licensed both in Texas and in Wyoming [Music] thank you