Small Estate Affidavits (Page 4 of 7) in pdf

14. Minor Heirs. County Court at Law No. 2 will not approve an SEA with a minor heir unless all estate assets

the minor heir(s) will inherit can be placed in the registry of the Court until the heir turns 18.

15. List correct inheritance shares. In Section “L” of the Court’s approved SEA form, you must list the shares of

each distributee in every possible type of property. In every SEA, fill out both “separate property” columns,

even if you did not list any real property. If decedent was married when he or she died, you must also fill out the

“community property” column. To figure out shares, see the appropriate chart on pages 5-7 of this handout.

 If Decedent was married at the date of death, the SEA must state the shares of each distributee in all

three types of property: separate personal property, separate real property, and Decedent’s share of

the community property. (The surviving spouse will retain his or her own share of the community

property.) It is never sufficient to say that there was no separate property or no separate real property.

 If Decedent was single at the date of death, there is no community property. Put “NA” in the

community property column but always fill out both separate property columns.

16. Signed and sworn to by all distributees.

 If you need more than one signature page, use as many signature pages as needed, but note that every signature

page must include all the italicized, boxed statements regarding what the distributees are swearing or affirming,

what the distributees are requesting, and what those who sign the Affidavit could be liable for. See the italicized

paragraphs in the box above the distributees’ signature lines on the Court’s SEA form (at the top of page 7 of the

pdf version of the form).

 Every distributee who has legal capacity must sign and swear to the Affidavit before a notary.

 Is there a minor or otherwise incapacitated distributee? If warranted by the facts, the natural guardian or

next of kin of any minor distributee or the guardian of any other incapacitated distributee may sign and swear

to the Affidavit on behalf of the minor or otherwise incapacitated distributee. The fact that someone is signing

and swearing on behalf of someone else must be clear from the signature.

 For a minor, if SEA Section “K“ does not show why the person has the authority to sign on the minor’s

behalf, provide proof the person signing for the minor is the minor’s natural guardian or next of kin.

 For an otherwise incapacitated distributee, provide Letters of Guardianship as proof that the person

signing has authority to do so.

 Is there a distributee who survived Decedent, but who is now deceased? If no personal representative has been

appointed for a now-deceased distributee, you cannot use the Small Estate Affidavit probate procedure and must

file an Application to Determine Heirship. If a personal representative has been appointed, the personal

representative can sign on behalf of the now-deceased distributee’s estate. In that case, the fact that the

personal representative is signing on behalf of the estate must be clear from the signature. In addition, you must

provide Letters Testamentary or Letters of Administration as proof that the person signing has authority to do so.

 Is there a missing distributee? If you do not know where to find a distributee, you cannot use the Small Estate

Affidavit probate procedure and must file an Application to Determine Heirship. Note that an Applicant seeking

a determination of heirship must be represented by an attorney.

17. Sworn to by two disinterested witnesses: Two disinterested witnesses must each sign and swear to the Affidavit

before a notary. These witnesses must be able to swear to all of the facts included in the SEA, not only the family

history facts. Disinterested witnesses are witnesses who have no interest in Decedent’s estate and who are not related

to Decedent under the laws of descent and distribution of the State of Texas. As noted in the boxed, italicized

statement on the SEA form above each disinterested witness’ signature, these witnesses, along with the distributees,

are liable for any damage or loss to any person that arises from a payment, delivery, transfer, or issuance made in

reliance on the affidavit.

18. Possible hearing. County Court at Law No. 2 usually does not require a hearing on SEA applications, but in some

circumstances the Court may require a hearing before an SEA will be approved. If a hearing is needed, the Court will

contact you to set a hearing. Do not set a hearing unless the Court has asked you to do so.

Updated September 6, 2017

Small Estate Affidavit Checklist – Page 4 of 6

Small Estate Affidavits Page 4

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