Small Estate Affidavit

What is the name of your state (only U.S. law)? Texas

My father recently passed away. He had a small IRA that I opened for him using the POA I had on him. He always stated he needed to add me to the account and never did.
Of course, in death the POA expires.

The bank is stating since there is no will, I have to file a small estate affidavit. I am the eldest child. I do have a brother in prison serving a life sentence for murder not scheduled for parole for anotehr 30 yrs. No other children or immediate family.

How can I file the above affidavit if brother cannot sign his release from prison? Doesn't he have to sign this as well?

What can I do?

I would just like to roll my father's IRA into an existing account of mine to get this matter cleared up.

Any advise you can offer will be great.

We're not talking about a lot of money to go through the process of hiring an atty, going to court, etc.
Thanks,
CB

All you need to do is to visit the county courthouse probate court and you can get the affidavit there. Your brother does not need to sign it. You are the only one who needs to sign it.

Dandy Don said:

All you need to do is to visit the county courthouse probate court and you can get the affidavit there. Your brother does not need to sign it. You are the only one who needs to sign it.

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Wrong... wrong... wrong

If this is wrong, what shall I do?
He's in prison and cannot sign anything.

christil said:

If this is wrong, what shall I do?
He's in prison and cannot sign anything.

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Why not? It may be a pain, but prisoners generally are not completely shut off from the rest of the world. Has he granted a power of attorney to anybody?

There was an attorney from Texas who posted here (infrequently) who might be able to suggest some other method, but I have not seen him here in a long time.

You might try contacting a couple Texas probate attorneys for consultations. Many will give you a brief consultation without charge. And, even if you have to compensate an attorney, it should not take the attorney much time.

The Texas Probate Code seems pretty clear:

§ 137. COLLECTION OF SMALL ESTATES UPON AFFIDAVIT. (a)
The distributees of the estate of a decedent who dies intestate
shall be entitled thereto, to the extent that the assets, exclusive
of homestead and exempt property, exceed the known liabilities of
said estate, exclusive of liabilities secured by homestead and
exempt property, without awaiting the appointment of a personal
representative when:
......
(4) There is filed with the clerk of the court having
jurisdiction and venue an affidavit sworn to by two disinterested
witnesses, by all such distributees that have legal capacity, and,
if the facts warrant, by the natural guardian or next of kin of any
minor or the guardian of any other incapacitated person who is also
a distributee, which affidavit shall be examined by the judge of the
court having jurisdiction and venue;
....

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