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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Estate Law
Satisfied Customers: 15761
Experience:  Licensed Texas General Practice Attorney
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My mother died with a will and my late father was

Customer Question

My mother died with a will and my late father was beneficiary of her life insurance and for them to issue Check in my name they say I have to small estate affidavit however that form says it is used for people without a will what do I do
Submitted: 8 months ago.
Category: Estate Law
Expert:  ScottyMacEsq replied 8 months ago.

Thank you for using JustAnswer.

I'm sorry to hear about your situation, and my condolences on your loss. To be clear, your father passed away first, and then your mother? And you have looked over the will to make certain that it is a valid will in Texas (original, signed by two witnesses and the testator, etc...)?

Customer: replied 8 months ago.
All is in order. She has nothing else to merit probate I just want to change this check and they won't without this form.
Expert:  ScottyMacEsq replied 8 months ago.

I see. How much is the value of the insurance policy that would pass?

Customer: replied 8 months ago.
3400 it's all she has left. No car no house etc...
Expert:  ScottyMacEsq replied 8 months ago.

I am sorry to hear that. And to be clear, she was a resident of Texas when she died?

Customer: replied 8 months ago.
sir that is correct. All was left to dad and clearly states in her will if he is no longer living it goes to me as I'm the only child.
Expert:  ScottyMacEsq replied 8 months ago.

Thank you. If she was residing in a different state, that would mean that other state's laws would apply. You're correct, in that the small estates affidavit can't be used when there was a will. You have to swear to that under oath, and if you can't, then you wouldn't be able to do so legally. Only if there was no valid will, or that it was lost or destroyed could you honestly say that there was no will.

There's really no alternative to probate. There are lower cost options for probating a will (i.e. probating a will as muniment of title) but even that could start at around $2,000 because you can't do this on your own without an attorney, and clearly that eats into the proceeds that you're trying to recover.

The only other option would be to wait three years, in which the insurance company has to remit the proceeds to the state comptroller's office, in which a beneficiary can prove that he/she has the right to claim these funds. The comptroller doesn't necessarily require the probate documentation that the insurance company does, but merely requires that you prove that you're entitled to it somehow. Now whether or not they accept your claim is up to them, but it's cheaper than getting an attorney.

Unfortunately this is a "blind spot" in Texas law. There should still be a small estates process when there's a will. But the way the law is now, there is not, and there's no other easy and cheap process to get the documentation that you need.

I know this is probably not what you wanted to hear, but it is the law. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (good or better). Thank you, ***** ***** luck to you!

Expert:  ScottyMacEsq replied 8 months ago.

Did you have any other questions before you rate this answer?

Expert:  ScottyMacEsq replied 8 months ago.

Are you there? Please note that I am still here, awaiting your response or rating... (please note that rating closes this question out, so if there's nothing else, please rate it so that I can assist other customers that are waiting for answers to their questions)

Expert:  ScottyMacEsq replied 8 months ago.

Should I continue to await your response, or may I assist the other customers that are waiting?

Customer: replied 8 months ago.
Have other questions but I'll request you later
Expert:  ScottyMacEsq replied 8 months ago.

If there's nothing else for the time being, please rate this answer so that it will close out and allow me to assist other customers that are waiting. You can come back after rating and ask follow up questions without having to start a new question, but it will allow me to assist others.

Expert:  ScottyMacEsq replied 8 months ago.

Hello? Are you still there?

Expert:  ScottyMacEsq replied 8 months ago.

Again, please note that I am still here, awaiting your response or rating... (please note that rating closes this question out, so if there's nothing else for the time being, please rate it so that I can assist other customers that are waiting for answers to their questions)

Expert:  ScottyMacEsq replied 8 months ago.

My apologies, but I must assist the other customers that are waiting. If there's nothing else, please rate this answer. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it 3 or more stars (good or better) AND press the "submit" button, if applicable. If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, ***** ***** luck to you!

▼ RATING REQUIRED! ▼ Please don't forget to Rate my service positively. It's only after you rate that I am credited.

Expert:  ScottyMacEsq replied 8 months ago.

Did you have any other questions before you rate this answer?

Expert:  ScottyMacEsq replied 8 months ago.

Again, please note that I NEED you to rate this answer for me to get credit for the time and effort that I spent on it...

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