Under Texas law, when a person dies with a will a small estate affidavit is not allowed as an alternative to probate.
Q: My sister passed away and named me as the beneficiary and executor in her will. She owned nothing. The only asset is a life insurance policy payable to her estate for $1,500. My lawyer told me not to bother probating her will, as it would cost $3,500, far more than the policy is worth. Can I do the probate myself, or is there some other low-cost process for small estates in Texas?
A: You could try to do the probate yourself, but even if you can figure out what to do, most courts in Texas will not allow you to proceed without an attorney.
ESTATE ISSUES: A golfing buddy left me 10 grand; how can I be sure his executor sends it?
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A simpler small estate affidavit is not available because your sister died with a will. Under Texas law, when a person dies with a will, a small estate affidavit is not allowed as an alternative to probate.
If you have a friend who is a lawyer, maybe you can ask that person to represent you for free. Note though, even if a lawyer works for free, the court fees and other costs will total about $500.
It is worth mentioning that your sister could have simply designated you as beneficiary, with one person or more named as alternate beneficiaries, by completing a form provided by the insurance company. The check would have been issued to you, not her estate.
Rather than throw the check away, you could endorse it as executor to yourself and deposit it online using your phone. While not technically proper, given that you are not a court-appointed executor, you are designated to serve as executor and presumably would be appointed.
There is a good chance you bank will reject your attempted deposit, but it's possible the check will go through without issue.
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Q: Our mother gave her home to me and my three siblings before she died, except that she kept a life estate allowing her to live there until her death. She died in 2015. We recently sold the property. Is the cost basis the county's assessed value for 2015?
A: The cost basis is the fair market value of the property on the date of your mother's death.
To determine the value on that date, you could use the county's assessed value, but you could also hire an appraiser to prepare a written report of the value.
Hiring an appraiser costs money, but if the value the appraiser assigns to the property is high enough, the taxes you save by having a higher cost basis could outweigh the cost of the appraisal.
If you hire an appraiser, ask for the highest value that can reasonably be assigned to the property. Since the preparation of an appraisal is essentially guesswork, your appraiser may value the home much higher than the county's value.
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Depending on how much income you and your siblings earn, whether each of you is married or single and how much the home was worth, it is possible that capital gains taxes won't be an issue even if you use the county's assessed value. Therefore, you and your siblings should discuss this matter with an accountant before proceeding.
The information in this column is intended to provide a general understanding of the law, not legal advice. Ronald Lipman of the Houston law firm Lipman & Associates is board-certified in estate planning and probate law by the Texas Board of Legal Specialization. Email questions to: stateyourcase@lipmanpc.com.
Why probating a small estate may be prohibitively costly
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19.03.2024
Under Texas law, when a person dies with a will a small estate affidavit is not allowed as an alternative to probate.
Q: My sister passed away and named me as the beneficiary and executor in her will. She owned nothing. The only asset is a life insurance policy payable to her estate for $1,500. My lawyer told me not to bother probating her will, as it would cost $3,500, far more than the policy is worth. Can I do the probate myself, or is there some other low-cost process for small estates in Texas?
A: You could try to do the probate yourself, but even if you can figure out what to do, most courts in Texas will not allow you to proceed without an attorney.
ESTATE ISSUES: A golfing buddy left me 10 grand; how can I be sure his executor sends it?
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A simpler small estate affidavit is not available because........
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