Small Estate Affidavits (Page 3 of 7) in pdf

with decedent, you should consider which assets are “exempt”. If you claim any assets are exempt, you must

indicate which assets you claim as exempt in the “additional information” column in the chart in Section “I” of

the SEA form. “Exempt property” is not the easiest concept, and defining which assets are “exempt” is beyond

the scope of this limited checklist. Exempt assets are those that are exempt from forced execution under

Chapter 42 of the Texas Property Code and that would be eligible to be set aside under Estates Code Section

353.051 if decedent’s estate were being administered. Exempt assets include home furnishings, farm animals,

and some other property, as well as decedent’s pension benefits and IRAs. Insurance benefits are also exempt.

You may want to consult with an attorney regarding which assets are exempt.

 Real property: homestead to homestead. The only real property that can be transferred by an SEA is

Decedent’s homestead property. Even then, real property cannot be transferred by an SEA unless the real

property will be inherited only by a distributee who was homesteading with the Decedent at the time

Decedent died – a surviving spouse or unmarried child of Decedent who resided on property with Decedent. If

this is the case, the SEA must include sufficient facts to support the homestead exemption and must also

include the street address of the property and if possible, the legal description.

Decedent’s Debts / Liabilities.



List everything. The SEA must list all of Decedent’s debts and other liabilities, including all credit card balances,

doctor and/or hospital bills, utility bills, etc. – anything owed by Decedent or Decedent’s Estate and not paid off

as of the date the SEA will be signed. The SEA must list any attorney’s fees paid or to be paid for preparation of

the SEA. If attorney’s fees are not listed as an estate liability, whoever paid the fees is responsible for those

fees; the SEA will not have the estate reimburse that person for those fees. If there are no debts or liabilities,

indicate “none”. This section can’t be left blank!



Provide sufficient detail. Indicate the amount of each liability as precisely as possible, describing the debt or

other liability with sufficient detail so that it is clear who the creditor is. Also indicate at least the last four digits

of any known account numbers.

10. Solvent. The total of the assets (not including the homestead and exempt property) must exceed the total known

liabilities, not including liabilities secured by homestead and exempt property. If they do not, the SEA must be denied.

(Distributees can pay off enough debts that the assets exceed the remaining liabilities.)

11. Medicaid. The SEA must indicate whether the Decedent applied for and received Medicaid benefits on or after

March 1, 2005. If so, Applicant must either (1) list as a liability the amount owed to Medicaid or (2) file a Medicaid Estate

Recovery Program (MERP) certification that Decedent’s estate is not subject to a MERP claim or (3) include additional

information proving that a MERP claim will not be filed. For more information, see:

12. Family history. The SEA must state the facts about Decedent’s marital history and family history in sufficient detail

that it is clear who inherits Decedent’s property under Texas law as well as the shares of those heirs under Texas law. As

long as you fill out the form carefully and completely, Section “K” of the form will lead you through the appropriate

questions, except for relatively unusual situations.

13. List all heirs/distributees. After you have filled out Section “K” of the form completely, figure out who the heirs

are under Texas law and list all of the heirs in Section “L” of the form.



To figure out who the heirs are, look at the charts on pages 5-7 of this handout, which summarize Texas

rules regarding descent and distribution based on Texas Estate Code Chapter 201. Decide which of the

following four charts applies to Decedent, and then look at everything included in that chart:

1. Married Person with Child[ren] or Other Descendants

2. Married Person with No Child or Descendant

3. Unmarried Person with Child[ren] or other Descendants

4. Unmarried Person with No Child or Descendant



If any heir died after the decedent, contact the Court.



In section L, list the name, address, phone number, and email address of every heir/distributee of

Decedent’s estate. You must list heirs for every type of property, even if you don’t think there was any

property of a particular type.

Updated September 6, 2017

Small Estate Affidavit Checklist – Page 3 of 6

Small Estate Affidavits Page 3

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