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Richard, Attorney
Category: Estate Law
Satisfied Customers: 55594
Experience:  29 years of experience practicing law, including tax and estate planning.
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Father of Gina ***** who died without a will. Gina owned no

Customer Question

I'm Roland ******, father of Gina ***** who died without a will. Gina owned no real estate. She owned a paid off but worn out car. Her cash on hand including bank accounts is less than her credit card debt. We were able to transfer and or close some accounts with her death certificate but the one bank that actually has money requires a " Small Estate Affidavit". The documents that came with the demand indicate I must acquire a lawyer and appear before a judge to obtain this document. How do I proceed?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Richard replied 1 year ago.

Good morning Roland. My name is ***** ***** I look forward to helping you.

First, let me tell you how sorry I am for the loss of your daughter. I know this must be a very difficult time for you and I will certainly keep you in my prayers.

It is true what you understand about the Small Estate Affidavit. The applicable statute regarding the Small Estate Affidavit is as follows:

"Sec. 205.001. ENTITLEMENT TO ESTATE WITHOUT APPOINTMENT OF PERSONAL REPRESENTATIVE. The distributees of the estate of a decedent who dies intestate are entitled to the decedent's estate without waiting for the appointment of a personal representative of the estate to the extent the estate assets, excluding homestead and exempt property, exceed the known liabilities of the estate, excluding any liabilities secured by homestead and exempt property, if:

(1) 30 days have elapsed since the date of the decedent's death;

(2) no petition for the appointment of a personal representative is pending or has been granted;

(3) the value of the estate assets, excluding homestead and exempt property, does not exceed $50,000;

(4) an affidavit that meets the requirements of Section 205.002 is filed with the clerk of the court that has jurisdiction and venue of the estate;

(5) the judge approves the affidavit as provided by Section 205.003; and

(6) the distributees comply with Section 205.004.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 205.002. AFFIDAVIT REQUIREMENTS. (a) An affidavit filed under Section 205.001 must:

(1) be sworn to by:

(A) two disinterested witnesses;

(B) each distributee of the estate who has legal capacity; and

(C) if warranted by the facts, the natural guardian or next of kin of any minor distributee or the guardian of any other incapacitated distributee;

(2) show the existence of the conditions prescribed by Sections 205.001(1), (2), and (3); and

(3) include:

(A) a list of all known estate assets and liabilities;

(B) the name and address of each distributee; and

(C) the relevant family history facts concerning heirship that show each distributee's right to receive estate money or other property or to have any evidence of money, property, or other right of the estate as is determined to exist transferred to the distributee as an heir or assignee.

(b) A list of all known estate assets under Subsection (a)(3)(A) must indicate which assets the applicant claims are exempt.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1106 (H.B. 3136), Sec. 1, eff. September 1, 2015.

Sec. 205.003. EXAMINATION AND APPROVAL OF AFFIDAVIT. The judge shall examine an affidavit filed under Section 205.001. The judge may approve the affidavit if the judge determines that the affidavit conforms to the requirements of this chapter."

Under my terms of service with JustAnswer, I'm not allowed to make a specific recommendation, but I can give you direction. You would want to either contact the state bar association or your nearest law school for a referral. I prefer the latter because they take great pride in their graduates and will take a more personal interest in making sure your referral is a good one because it will be a reflection of the school. But, this is not a complicated process so you would only need a 1-2 year lawyer rather than a more experienced lawyer with the higher billing rate that comes with that experience.

BUT, here's the thing. if you choose you can do nothing. If her debt is greater than the amount in this account, any amount you get from this account is going to need to be used to pay debts. So, you can simply let the account sit and let the creditors who choose to do so go after the account to satisfy their debt. You have no legal obligation to spend any money by going through the Small Estate Affidavit.

Thank you so much for allowing me to help you with your questions. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask! If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service as OK, Good or Excellent (hopefully Good or Excellent). Otherwise, I receive no credit for assisting you today. I thank you in advance for taking the time to provide me a positive rating!