Michael S ​Holmes PC

I am seeing it more frequently: a spouse dies without a will and the widow(er) wants to sell the homestead.  The closing date is approaching and the title company awakes and requires some probate process to make sure that the widow(er) is the right (and/or the only) person who can legally sell the home.

In this scenario,  filing a small estate affidavit in the probate court may resolve the problem.  A small estate affidavit is limited to very specific facts.

If the deceased spouse's non-exempt estate is less than $50,000 (the value of the homestead and exempt personal property are not counted) and the non-exempt assets exceed the liabilities of the deceased, a small estate affidavit can be utilized.  It is a relative inexpensive procedure that is processed and approved quickly by the probate court.  This procedure does pass title to the homestead to the heirs BUT NOT ANY OTHER REAL PROPERTY.  

The main issue is who are the heirs who are entitled to receive the deceased's estate (Texas law determines this, not the family)?  I recently had a client who learned that children from a prior and current marriage of the deceased spouse owned half of the the spouse's estate - not the widow(er).  It complicated the situation.

If a small estate affidavit can be used, it should be used because a formal probate of an intestate's estate costs thousands of dollars.